Opinion
DOCKET NO. A-4804-11T3
11-20-2014
STATE OF NEW JERSEY, Plaintiff-Respondent/ Cross-Appellant, v. NINA POWERS, a/k/a TCHIGLADZE NUNU, Defendant-Appellant/ Cross-Respondent.
Clifford E. Lazzaro & Associates, P.C., attorneys for appellant/cross-respondent (Clifford E. Lazzaro, on the brief). John L. Molinelli, Bergen County Prosecutor, attorney for respondent/cross-appellant (Elizabeth R. Rebein, Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Lihotz and Maven. On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 11-05-0984. Clifford E. Lazzaro & Associates, P.C., attorneys for appellant/cross-respondent (Clifford E. Lazzaro, on the brief). John L. Molinelli, Bergen County Prosecutor, attorney for respondent/cross-appellant (Elizabeth R. Rebein, Assistant Prosecutor, of counsel and on the brief). The opinion of the court was delivered by MAVEN, J.A.D.
Defendant Nina Powers appeals from a judgment of conviction finding her guilty of one count of third-degree endangering the welfare of an elderly person, N.J.S.A. 2C:24-8 (count one); and one count of fourth-degree recklessly endangering another person, N.J.S.A. 2C:12-2b(2) (count two). The judge sentenced defendant to a five year probationary term on count one. On count two, the judge ordered defendant to serve five years probation, to run concurrently to the sentence on count one, conditioned on serving a 270-day sentence in the county jail upon the completion of the probationary term. The judge provided defendant could apply to suspend the jail term. Further, defendant was prohibited from future employment as a home health aide, and from caring for anyone who was under the age of eighteen, mentally impaired, or elderly. In addition to applicable fines and penalties, the judge ordered defendant to perform 200 hours of community service.
A person is guilty of neglect of an elderly person if he or she has
a legal duty to care for or who assumed continuing responsibility for the care of a person 60 years of age or older . . ., who abandons the elderly person . . . or unreasonably neglects to do or fails to permit to be done any act necessary for the physical or mental health of the elderly person . . . is guilty of a crime of the third degree. For purposes of this section "abandon" means the willful desertion or forsaking of an elderly person. . . .
[N.J.S.A. 2C:24-8.]
A person is guilty of recklessly endangering another person if he or she
purposely or knowingly offers, gives or entices any person to take or accept any . . . substances that is intended to be consumed which is poisonous, intoxicating, anesthetizing, tranquilizing, disorienting, deleterious or harmful to the health or welfare of such person, without the knowledge of the other person as to the identity and effect of the substance. . . .
[N.J.S.A. 2C:12-2b(2).]
Defendant appealed from her conviction. The State cross-appealed from the sentence imposed on count two. In her appeal, defendant raises the following arguments:
I. THE TRIAL COURT ERRED IN FAILING TO GRANT DEFENDANT'S MOTIONS FOR JUDGMENTS OF ACQUITTAL.
(A) The State Failed to Prove All Elements of the Crime of Neglect of An Elderly Person Pursuant to N.J.S.A. 2C:24-8.II. THE JURY'S GUILTY VERDICT AS TO BOTH COUNTS OF THE INDICTMENT WAS AGAINST THE WEIGHT OF THE EVIDENCE AND REASONABLE DOUBT EXISTS AS TO DEFENDANT'S GUILT MANDATING A VACATION OF THE CONVICTION AND JUDGMENT OF ACQUITTAL OR NEW TRIAL.
(B) The Trial Court Erred By Failing to Prove All Elements of the Crime of Endangering Another Person Pursuant to N.J.S.A. 2C:12-2b(2).
III. THE TRIAL COURT COMMITTED CUMULATIVE ERRORS REGARDING THE TESTIMONY OF THE STATE'S WITNESS THAT SO PREJUDICED THE DEFENDANT'S CASE AS TO WARRANT A REVERSAL OF THE CONVICTION.
(A) The Trial Court Did Not Give a Curative Instruction to Remedy the Prejudicial, Unsolicited Testimony of Aileen [Twomey] (Not Raised Below).IV. THE PROSECUTORIAL MISCONDUCT WAS SO EGREGIOUS THAT IT DEPRIVED THE DEFENDANT OF A FAIR TRIAL SO AS TO WARRANT REVERSAL OF THE CONVICTION (Partially Raised Below).
(B) The Trial Court Permitted the State's Witness to Offer Unsolicited Testimony, Despite Being Asked a Question That Called For a "Yes" or "No" Response.
(A) The Prosecutor Interjected Her Personal Beliefs During Her Summation.
(B) The Prosecutor Argued Evidence That Was Not Part of The Trial Record.
(C) The Prosecutor Made Inappropriate Comments About Defense Counsel and the Defendant's Position.
The State raises one argument in its cross-appeal:
THE SENTENCE THE TRIAL COURT IMPOSED ON COUNT TWO, WHICH FAILED TO IMPOSE THE MANDATORY SENTENCE REQUIRED BY THE STATUTE, IS ILLEGAL.
After reviewing the record in light of the contentions advanced on appeal, we affirm the convictions. With respect to the cross-appeal, we agree with the State that the sentence on count two must be corrected on remand.
I.
The facts and evidence are derived from the trial record in which the State presented the testimony of Kerry Reekie, the victim's daughter-in-law, and Aileen Twomey, R.N., the victim's treating nurse practitioner. Defendant presented two character witnesses and testified on her own behalf.
Seventy-four-year old Olivia Reekie had been diagnosed with Alzheimer's disease. Following her diagnosis, Olivia's son, Michael, moved into her home to care for her. In May 2010, Kerry, Michael's wife (collectively the Reekies), began working from Olivia's residence to assist Michael with Olivia's care. According to Kerry, at that time Olivia had been capable of administering her own pills. When she was no longer capable of doing so, Michael or Kerry administered her medicine. To facilitate the process, they purchased a pill case, which they kept hidden in Olivia's top dresser drawer.
Olivia loved to go on walks several times a day. To prevent Olivia from wandering away, and to make her home safer, the Reekies installed childproof knobs on the doors. They believed she could not squeeze and turn the knobs because Olivia lost the ability to use her fingers. In addition, to prevent her from getting lost, the Reekies purchased a cell phone equipped with GPS for Olivia to carry while on her walks.
As Olivia's mental health continued to deteriorate, it became more difficult for Kerry to attend to all of Olivia's needs, and at the same time concentrate on her work. Therefore, the Reekies hired defendant to provide around the clock care for Olivia. They informed defendant about Olivia's medical conditions and explained they expected her to accompany Olivia on walks, to prepare her meals, and to ensure she takes her medications.
In September, defendant moved into the Reekies' home. She shared a bedroom with Olivia that was furnished with two beds and two dressers.
Not long after the Reekies hired defendant, Kerry began to notice changes in Olivia's behavior. According to Kerry, Olivia seemed tired all the time whereas before, they could not "keep her sitting down. She always wanted to go, go, go." Olivia deviated from her normal routine and began to sleep on the couch all day. While Olivia slept on the couch, defendant spent a lot of time "on the computer in the other room talking with family in [the country of] Georgia or watching soap operas that [were] in her language." While Olivia used to go to bed around 9 p.m. and rise at 7 a.m., she began going to bed much earlier, around 5 or 6 p.m., and she would stay in bed until 9 or 10 a.m.
In December 2010, Olivia emerged from her shared bedroom with a piece of paper. Kerry examined the paper and realized it was a CVS cash register receipt for two bottles of sleeping pills. Kerry searched Olivia and defendant's bedroom for the sleeping pills and found the pills hidden in defendant's dresser. Both bottles had child proof lids. In addition to the sleeping pills, Kerry also discovered other unknown medications with labels that were not in English. Kerry counted and photographed the sleeping pills found in defendant's dresser "to prove that they were there."
On December 23, 2010, Kerry began to monitor the sleeping pills, and recorded the number of pills she counted each day. That day, she counted fifty-six pills, on December 24, Kerry counted fifty-one pills. By December 27, Kerry counted thirty-one pills remaining in the bottle.
After New Year's Day, Kerry resumed counting the sleeping pills. On January 5, 2011, she discovered a new bottle of pills had been opened, which contained ninety-nine pills. With few exceptions, Kerry continued to count the sleeping pills for thirty-eight days. Each day the number of pills in the bottle would be reduced except for one weekend when defendant went away. That weekend the pill count did not change.
In addition to counting pills during this time period, Kerry began following defendant and Olivia on their walks to see what she was actually doing with Olivia. She tracked Olivia via the GPS in her cell phone, and observed that she and defendant would be in the exact same spot for one and one-half hours. Several times in January 2011, Kerry drove to a location to find defendant and Olivia sitting in the car sleeping.
In January 2011, Kerry took Olivia to her nurse practitioner for a blood test, which tested positive for diphenhydramine. The label on the sleeping pill bottles stated the pills contained this drug. Upon receiving the results, Kerry went to the Dumont Police Department to report the matter to the authorities. After speaking with a detective, the Reekies decided to confront defendant and terminate her employment.
Diphenhydramine, the generic name for Benadryl, is used to relieve red, irritated, itchy, watery eyes; sneezing; and runny nose caused by hay fever, allergies, or the common cold. Diphenhydramine is also used to relieve cough caused by minor throat or airway irritation. In addition, it is used to prevent and treat motion sickness, and to treat insomnia (difficulty falling asleep or staying asleep). Diphenhydramine, MedlinePlus—A Service of the U.S. National Library of Medicine, National Institutes of Health, http://www.nlm.nih.gov/medlineplus/druginfo/meds/a682539.html (last visited November 13, 2014).
After defendant moved out of the home, Olivia returned "to her normal routine of energy, walking, wanting to go, go, go all the time." However, because Olivia had lost the ability to communicate, the Reekies were unable to learn from Olivia how she consumed the sleeping pills.
The State presented Aileen Twomey, R.N., an adult nurse practitioner, licensed in New Jersey to prescribe medication. She explained she received her nursing degree from Seton Hall, then later received a master's degree and a post-master's certificate. She began treating Olivia in 1999. She was aware that in 2006, Olivia was diagnosed with dementia and then Alzheimer's. She was "probably" the only individual prescribing medication to Olivia; therefore, she was aware of medications Olivia was taking. To her knowledge Olivia was not prescribed any medications containing diphenhydramine.
In January 2011, after Kerry contacted Twomey about Olivia, she ordered a blood test. The lab report from the January 14 blood test lab revealed a level of "220 nanograms" [of diphenhydramine] in Olivia's bloodstream. She explained the "[d]iphenhydramine blood level was two hundred twenty. The hypnotic range is considered one hundred to one thousand. Toxic would be greater than one thousand. So she was basically sedated level." Defense counsel objected. The trial judge sustained defendant's objection and instructed the jury to disregard that portion of the statement because Twomey was not qualified to render an opinion. Defendant did not object to the curative instruction.
Counsel proceeded with cross-examination. In response to defense counsel's question, Twomey again stated the blood test revealed diphenhydramine. Then, the following exchange occurred:
[Defense counsel]: But the results, the lab results do not tell you how many pills amounts to the level of diphenhydramine in her blood, correct?
Twomey: The pills have different milligrams. They wouldn't.
[Defense counsel]: Correct. So you cannot tell this jury whether the level indicated in the lab report equals five hundred a (sic) pills of diphenhydramine?
Twomey: No, but the report says . . .
[Defense counsel]: But . . .
[Prosecutor]: Judge . . .
The Court: I'm going to allow her to answer the question fully. Go ahead.
Twomey: The report gives a number. On that there's a range. In this particular report it says that her range is considered to be in a hypnotic range. They can't say how many pills there are. They can just assume through milliliters, whatever their measurements are the amount of milligrams in her blood, the method they used to measure
the blood test at the lab comes out with this particular number measurement and this is the range.Following this testimony, the judge addressed both counsel at sidebar:
The Court: I know on direct when the lab report was discussed there was no objection because it was stipulated prior. What I want to do is advise the jury, counsel, what stipulation means, that they don't have to -- it's up to them to decide if the levels mean anything or it's up to them to make a determination that there's actually diphenhydramine, whatever it is, in the blood. But the fact it's [a] stipulation is not proof. They're the ones who make the decision. No problem with that?The parties stipulated to the results of the blood test and the court admitted the lab report into evidence, without objection.
[Defense Counsel]: No problem.
After the State rested, defendant moved for a judgment of acquittal. As to the charge of neglect of an elderly person, defense counsel argued the State failed to present sufficient facts from which a jury could find defendant guilty of the offense. The judge ruled:
In essence the allegation is that the defendant administered or offered to the victim, Olivia Reekie, sleeping pills, namely the CVS sleep aid pills.
Giving the State the benefit of all the inferences and circumstantial evidence in this case that the sleeping pills were the
defendant's, the sleeping pills were in the defendant's dresser drawer, the sleeping pills had a specific count, the sleeping pills count it's acknowledged about one hundred twenty-one pills were used in thirty days or so and that the sleeping pills on the label contained diphenhydramine and the blood result from the victim contained that same chemical, that she was sleeping, at least by the observations of Kerry Reekie, the [c]ourt finds that the jury could establish guilt beyond a reasonable doubt.
With respect to the charge of recklessly endangering another person, defendant argued the State presented insufficient evidence to establish the second element, namely that defendant committed the offense or that Olivia took the sleeping pills without her knowledge or knowing what it was. In rejecting this claim the judge found:
There is proof that Olivia is at least sixty years of age or older as per the statute. And the standard in this case is gross negligence, that is[,] the conduct [is] a gross deviation from the standard of care that a reasonable person would observe in the actor's situation. And if, in fact, the defendant gave such sleeping pills to [Olivia] the jury certainly could find that this would be a gross deviation from someone who is supposed to be responsible for the care of the victim.
The testimony continued with defendant. She began caring for Olivia in September 2010, and her duties were to be Olivia's companion. In the five months of her employment, she considered defendant said to her, even in the Georgian language, and she constantly asked for tea. She agreed that Olivia always wanted to go out on walks. She took Olivia to her friends' homes and while in these homes Olivia would eat all of the food that had been set out for the guests.
Defendant purchased two bottles of sleeping pills from the CVS store. She kept the pills in her dresser drawer under personal papers and magazines along with other unidentified loose pills. Defendant began taking one to three sleeping pills almost every night beginning October 20, because she had trouble sleeping due the noise caused by the passing trains. According to defendant, Olivia suffered from chronic, heavy diarrhea, and would get up seven to eight times during the night and repeatedly say "I want to bathroom, I want to bathroom." Defendant took sleeping pills so she would not be awakened by Olivia during the night. She said "[Olivia] did not need help. She could go independently to bathroom, wash hands, and she could stand by and look at mirror and talk to herself."
Defendant acknowledged the results of the lab test showed that Olivia tested positive for diphenhydramine. However, defendant denied giving Olivia any sleeping pills or being aware of Olivia taking her sleeping pills.
On cross-examination, defendant admitted knowing Olivia was seventy-four years old. When asked if she was told that Olivia had Alzheimer's, defendant stated the Reekies "did not talk specifically about this disease. It was obvious that the old woman needed help." Defendant stated Olivia was difficult to take care of and Olivia would not listen to her. She had to tell Olivia when to eat and when to get out of the shower. Defendant stated that Olivia ate Christmas tree ornaments and talked to herself in the mirror.
The two defense witnesses testified to defendant's good character. S.G. stated defendant had cared for her parents for years and was a very good health care aide. Both witnesses related their observations of Olivia's conduct while in their respective homes. S.G. claimed Olivia ate a Christmas tree ornament. N.G. testified while in her home, Olivia constantly opened doors and drawers and put everything in her mouth. N.G. stated Olivia tried to eat potpourri. The defense rested at the conclusion of this testimony.
Defendant renewed her motion for a judgment of acquittal pursuant to Rule 3:18-1, arguing the charge of neglect of an elderly person was intended to address acts of omission, that is, "situations where somebody is under somebody's care and they affirmatively do not take the medical action necessary to help that person." On the endangering charge, defendant argued there was insufficient evidence that Olivia either knew or did not know what she was taking. The State responded that "[t]his is a woman who ate a Christmas tree ornament," and expressed confidence there was enough "circumstantial evidence to show that she would have no idea what she was being administered by this defendant." The court stated,
So if someone decided to and the jury believes that this person drugs the person that she's caring for so that she is in a stupor or sleeping, that would not be considered willful desertion or forsaking the elderly person?When defendant insisted that there was no expert testimony that the pills were poisonous, intoxicating, anesthetizing, tranquilizing, disorienting, [or] deleterious, the judge ruled, "I don't find that an expert is required to make a determination that taking a sleeping pill would be tranquilizing. That's the purpose of a sleeping pill."
I find as a matter of law that a jury at this stage could, if they believe the testimony . . . return a verdict of guilty on both counts.
After the jury returned the guilty verdicts, defendant moved for a judgment notwithstanding the verdict (JNOV) pursuant to Rule 3:18-2; and for a new trial under Rule 3:20-1, on the ground that the jury's verdict was against the weight of the evidence. The court denied both motions.
II.
We begin with defendant's arguments in Points I and II that the court improperly denied her motions for judgment of acquittal, at the end of the State's case and after all evidence had been presented, and her motion for JNOV or for a new trial. We disagree.
At the close of the State's case, or after all evidence has been presented, the court must, on a defendant's motion or its own initiative, grant a motion to acquit if "the evidence is insufficient to warrant a conviction." R. 3:18-1. The test is whether viewing the evidence in its entirety and giving the State the benefit of all favorable testimony and inferences, a jury could find guilt beyond a reasonable doubt. State v. D.A., 191 N.J. 158, 163 (2007) (citing State v. Reyes, 50 N.J. 454, 458-59 (1967)). If the evidence satisfies this standard, the court must deny the motion. State v. Spivey, 179 N.J. 229, 236 (2004). In assessing the sufficiency of the evidence on an acquittal motion, we apply a de novo standard of review. State v. Williams, 218 N.J. 576 (2014); Pressler & Verniero, Current N.J. Court Rules, comment 5 on R. 3:18-1 (2014).
We are firmly convinced that the trial judge rightly denied defendant's motions for a judgment of acquittal. The specific facts recited by the judge in support of his conclusion provide ample circumstantial evidence that, when "viewed in its entirety, and giving the State the benefit of all of favorable testimony and all of the favorable inferences which can reasonably be drawn therefrom," provided a solid basis by which the jury could properly find beyond a reasonable doubt that defendant was guilty of neglect, and endangering Olivia. D.A., supra, 191 N.J. at 163.
Nor do we find the judge abused his discretion in denying the motion for JNOV and for new trial. The jury verdict should only be set aside by the trial judge when it clearly and convincingly appears there was a miscarriage of justice. R. 2:10-1; State v. Sims, 65 N.J. 359, 373-74 (1974); Dolson v. Anastasia, 55 N.J. 2, 7 (1969). On review, we apply essentially the same standard. Dolson, supra, 55 N.J. at 7. Our review is limited, and we must give due regard to the jury's assessment of witness credibility based on its opportunity to have heard live witness testimony and to have gained a "feel for the case." Sims, supra, 65 N.J. at 374. See also State v. Russo, 333 N.J. Super. 119, 137 (App. Div. 2000) (holding "a motion for a new trial is addressed to the sound discretion of the trial judge, and the exercise of that discretion will not be interfered with on appeal unless a clear abuse has been shown").
Applying these standards, we conclude there was more than sufficient competent evidence presented by the State to enable a jury to properly find defendant guilty of both offenses. The State adduced the following evidence to support the charges: (1) defendant knew Olivia was over sixty years old and had mental health issues, as evidenced by her behavior, which required that she be closely monitored; (2) the Reekies and defendant were the only individuals residing with Olivia; (3) defendant admitted purchasing and possessing the sleeping pills, and taking one to three pills a night to prevent being awakened by train noise or Olivia; (4) Kerry counted the pills almost daily and discovered between three and eight pills missing each day; (5) the stipulated lab results establish the presence of diphenhydramine in Olivia's blood stream, despite her not being prescribed any medications containing that active ingredient; (6) although there were other pills in defendant's drawer, no other medications were detected by the blood tests; (7) Olivia's behavior changed from being very active to lethargic and tired after defendant moved into the Reekies' home, but Olivia's activity level increased after the Reekies terminated defendant's employment; and (8) Olivia was unable to open childproof doorknobs and the pill bottle cap was childproof.
From this evidence, a jury could have reasonably concluded that defendant was the individual who knowingly fed Olivia sleeping pills without her knowing what the pills were, and that Olivia was unaware that defendant was feeding her sleeping pills. Moreover, the jury had been instructed that "failure to exercise reasonable care constitutes negligence, which is a gross deviation from the standard of care that a reasonable person would observe in the actor's situation." Thus, the jury could have found that feeding Olivia non-prescription sleeping pills was a gross deviation from the standard of care for a home health aide entrusted with the care of an elderly person suffering from Alzheimer's disease or other mental health disorder. There is sufficient evidence in the record to support the jury's verdict on both counts, State v. Papasavvas, 170 N.J. 462, 479 (2002), and we discern no basis for disturbing the trial judge's decision denying defendant's motion for a JNOV and new trial on the two charges.
III.
We now turn to defendant's contention in Point III that the trial court committed numerous errors with respect to Twomey's testimony that cumulatively denied her the right to a fair jury trial. First, defendant contends Twomey's opinion that the lab report indicated that Olivia "was basically sedated" was extremely prejudicial to the defendant because the jury heard a lay witness testify to the level of diphenhydramine in Olivia's blood and "what the ranges were." The trial judge sustained defendant's objection stating,
The court: Sustained. Jury is going to disregard that if you can. What was just testified to.
Prosecutor: The levels.
The court: Just the levels.
. . . .
The court: Please. The levels of what was testified to which is what the report says . . . . [W]hat that means [is] I'm asking you to disregard because this witness is not qualified to give an opinion. She's not giving an opinion as to that.
Because defendant failed to object to the language of the curative instruction, "we review the [instruction] for plain error and reverse only if such an error was 'clearly capable of producing an unjust result.'" State v. Miller, 205 N.J. 109, 126-27 (2011) (quoting R. 2:10-2). "Pursuant to Rule 1:7-2, defendant's failure to object [to a curative instruction] constitutes a waiver of his right to challenge that instruction on appeal." State v. Docaj, 407 N.J. Super. 352, 362 (App. Div.), certif. denied, 200 N.J. 370 (2009). "If the defendant does not object to the [curative instruction] at the time it is given, there is a presumption that the [curative instruction] was not error and was unlikely to prejudice the defendant's case." State v. Singleton, 211 N.J. 157, 182 (2012).
As conceded by the State, Twomey's testimony giving her interpretation of the effect the diphenhydramine had on Olivia was improper. However, the complained of statement was not harmful or prejudicial to defendant. The parties' had stipulated to the blood test results and the lab report had been admitted into evidence. Although Twomey was not qualified as an expert in pharmacology, she was licensed to prescribe medication and doubtless qualified to offer a lay opinion. The judge had ruled that "an expert is [not] required to make a determination that taking a sleeping pill would be tranquilizing." N.J.R.E. 201(b). We agree. Contrary to defendant's assertions, the fact that sleeping pills are used to help people sleep and can make you drowsy is not so esoteric that its effects are beyond the ken of the average juror, thereby necessitating expert testimony. We are satisfied if there was any prejudice as result of that comment it was harmless.
As to the curative instruction, the judge identified what was said and why the statement should be disregarded, namely that Twomey was not qualified to give an opinion. See State v. Vallejo, 198 N.J. 122, 136-37 (2009). Furthermore, during the final charge to the jury, the judge reminded them not to consider evidence or testimony that was ruled inadmissible. We conclude the judge's curative instructions were sufficient to cure any prejudice. We must presume that the jury followed those instructions. State v. Smith, 212 N.J. 365, 409 (2012).
Second, defendant argues the court improperly permitted Twomey to give a narrative response regarding the lab results on cross-examination. The scope of cross-examination rests within the sound discretion of the trial judge. State v. Messino, 378 N.J. Super. 559, 583 (App. Div. 2005). We will not interfere with the trial judge's authority to control the scope of cross-examination "unless clear error and prejudice are shown." Ibid. In this instance, in response to defense counsel's cross-examination, the judge permitted Twomey to recite the information contained in the lab report. We find no abuse in the exercise of the judge's discretion.
"[T]he predicate for relief for cumulative error must be that the probable effect of the cumulative error was to render the underlying trial unfair." State v. Wakefield, 190 N.J. 397, 538 (2008). That circumstance does not exist on this record. Having found none of defendant's arguments regarding the conduct of the trial to be persuasive, we find no cumulative error.
IV.
Next, defendant claims that during summation, the prosecutor interjected her personal beliefs, argued evidence that was not part of the record and denigrated defense counsel. Because defendant did not object to any of the comments, we consider this argument in the context of the plain error doctrine. R. 1:7-2; R. 2:10-2.
To determine whether prosecutorial misconduct in summation warrants reversal, we must assess whether the misconduct "was so egregious that it deprived the defendant of a fair trial." State v. Frost, 158 N.J. 76, 83 (1999) (citations omitted). In making this assessment, we must consider "the tenor of the trial and the responsiveness of counsel and the court to the improprieties when they occurred." State v. Timmendequas, 161 N.J. 515, 575 (1999) (citations omitted), cert. denied, 534 U.S. 858, 122 S. Ct. 136, 151 L. Ed. 2d 89 (2001). If, as is largely the case here, a defendant's claim of improper closing argument by a prosecutor is raised for the first time on appeal, a reviewing court need only be concerned with whether "the remarks, if improper, substantially prejudiced the defendant['s] fundamental right to have the jury fairly evaluate the merits of [his or her] defense, and thus had a clear capacity to bring about an unjust result." State v. Johnson, 31 N.J. 489, 510 (1960).
During her closing, the prosecutor responded to defendant's suggestion "that Kerry Reekie is a woman who did not care about her mother-in-law[, and] . . . tried to poison [Olivia], to get some made up inheritance." Defendant questioned why Kerry undertook her own investigation of defendant and the sleeping pills, and stated "[i]t's done by an amateur family member with bias, with suspicions, with anger." The prosecutor referred to these allegation as "silly." Further, she described defense counsel's feelings regarding the charges against defendant, asserting, "This is such a serious allegation, yet [defense counsel] is outraged that the State has brought this allegation against his client."
We highlighted the words that plaintiff finds objectionable as shown in her brief.
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Further, the prosecutor argued:
I'm also going to suggest to you that there is a little bit of guilt going on here on the part of Kerry Reekie. And she told you that she couldn't believe that somebody she and Michael had brought into their home to care for [Olivia] could possibly do this. I think it was a combination . . . she wanted to make sure before she leveled this accusation.
She continued stating, "I don't know what possible motive [Kerry] could have to lie to you. I don't know what she could have been angry about or what inheritance she could have been seeking." With respect to the passage of time before Kerry submitted Olivia for a blood test after first discovering the missing sleeping pills, the prosecutor asserted, "I don't think fifteen days is an unreasonable time to wait before you level some type of accusation like this." Regarding the character witnesses' testimony, the prosecutor remarked:
I have no reason to doubt that defendant took wonderful care of S.G.'s parents. I have no reason to doubt anything S.G. said. I have no reason to doubt anything N.G. said.
I have no reason to doubt that up until this client this woman was a wonderful home health care worker.
The prosecutor also commented on the results of the blood test:
You know what [the blood test] didn't come back positive for? Any other substance. And didn't defendant tell you there were all these other loose pills floating around in her drawer. We didn't know what they were because she couldn't tell us, wouldn't tell us what they were. But . . . this is a woman [Olivia] that they would have you believe would just pick up anything that was in her path, shoving everything into her mouth, yet she testified she had all these other loose pills in her drawer and Olivia Reekie tested positive only for diphenhydramine.
"Prosecutors are permitted to respond to arguments raised by defense counsel as long as they do not stray beyond the evidence." State v. Vasguez, 374 N.J. Super. 252, 260 (App. Div. 2005). Further, a prosecutor's response to "an issue injected by opposing counsel cannot be considered a foray beyond the evidence adduced at trial." State v. Johnson, 287 N.J. Super. 247, 266 (App. Div.), certif. denied, 144 N.J. 5 87 (1996).
The State's comments responded to defendant's attack on Kerry's credibility and her motive to be untruthful. See Johnson, supra, 287 N.J. Super. at 266 (stating "[a] prosecutor may respond to an issue or argument raised by defense counsel."). Additionally, the prosecutor's remarks on this issue constituted fair comment on the evidence presented. See Frost, supra, 158 N.J. at 82. The prosecutor's comment did not in any way suggest that defense counsel was frivolous in his defense or committed any form of professional impropriety. Instead, the prosecutor was simply arguing that defense counsel's interpretation of the evidence presented at trial was not reasonable and should not be accepted by the jury. Therefore, it was proper summation and certainly does not provide a basis for a reversal of defendant's conviction.
V.
The State argues the sentence imposed by the trial judge on count two is illegal. N.J.S.A. 2C:12-2b(2) provides in relevant part: "If a person is convicted of a crime in the fourth[-] degree under paragraph (2) of this subsection, the sentence imposed shall include a fixed minimum sentence of not less than six months during which the defendant shall not be eligible for parole." The State contends, under the terms of the statute, the judge lacked the authority to forego that requirement by permitting defendant to apply for a suspended sentence.
The court may not reduce a sentence below a term of a statutorily mandated term of parole ineligibility. State v. Mendel, 212 N.J. Super. 110 (App. Div. 1986). Here, the court sentenced defendant to 270 days, which satisfies the minimum six month requirement. However, the court erred in permitting defendant to apply for a suspended sentence; therefore we remand to amend the judgment of conviction to remove that provision.
Affirm the conviction, remand to amend the judgment of conviction to remove the provision allowing defendant to make application to suspend her county jail sentence. We do not retain jurisdiction.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION