Opinion
DOCKET NO. A-5877-12T2
06-05-2015
Peter T. Blum, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Mr. Blum, of counsel and on the brief). Brian Uzdavinis, Deputy Attorney General, argued the cause for respondent (John J. Hoffman, Acting Attorney General, attorney; Mr. Uzdavinis, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Lihotz and Rothstadt. On appeal from Superior Court of New Jersey, Law Division, Gloucester County, Indictment No. 12-05-00502. Peter T. Blum, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Mr. Blum, of counsel and on the brief). Brian Uzdavinis, Deputy Attorney General, argued the cause for respondent (John J. Hoffman, Acting Attorney General, attorney; Mr. Uzdavinis, of counsel and on the brief). PER CURIAM
Defendant, Paul E. Prince, appeals from a July 1, 2013 final judgment of conviction entered after a jury found him guilty of stalking his ex-wife, N.J.S.A. 2C:12-10(b), and from the simultaneous entry of a permanent restraining order, pursuant to N.J.S.A. 2C:12-10.1. The evidence adduced at trial established defendant surreptitiously installed a global positioning system (GPS) tracking device in his ex-wife's vehicle. On appeal, defendant argues he was denied a fair trial by the court admitting into evidence the results of a computer generated GPS report. He also argues the restraining order entered by the court was overbroad. Specifically he argues:
POINT I
PRINCE WAS DEPRIVED OF A FAIR TRIAL ON THE STALKING CHARGE BECAUSE THE COURT ADMITTED AN INCRIMINATING REPORT OF THE ACTIVATIONS OF AN ENFOTRACE-BRAND GPS TRACKING DEVICE WITHOUT ANY FOUNDATIONAL PROOF THAT THE ENFOTRACE SYSTEM RELIABLY REGISTERED AND REPORTED ACTIVATIONS. U.S. CONST. AMENDS. VI, XIV; N.J. CONST. ART. I, PARAS 1, 10.
POINT II
THE RESTRAINING ORDER SHOULD BE REFORMULATED BECAUSE THE OVERBROAD PROHIBITION ON PRINCE "MAINTAINING . . . PHYSICAL PROXIMITY" TO HIS EX-WIFE IS UNAUTHORIZED BY STATUTE, WHICH REQUIRES THAT THE FORBIDDEN PLACES BE SPECIFICALLY STATED. N.J.S.A. 2C:12-10.1(b)(1).
We have reviewed the record and considered the applicable principles of law. We affirm defendant's conviction, but remand for entry of a modified restraining order in accordance with this opinion.
We discern the facts from the trial record.
On May 2, 2013, a Gloucester County Grand Jury indicted defendant on a charge of fourth-degree stalking. The court conducted a jury trial over five days which resulted in defendant's conviction. The court sentenced defendant to a one-year term of probation and imposed mandatory fines and penalties. This appeal followed.
Before his arrest, defendant was employed at National Auto Sales (NAS) as a debt collector. His duties included arranging for a vehicle's repossession when a debtor defaulted on a loan. As a result, he had access to the GPS devices NAS installed on its vehicles for repossession purposes and to the system NAS used to locate the devices. Also, during his employment, he purchased from NAS a 2005 Chrysler PT Cruiser.
Defendant and his wife divorced in 2005 after fifteen years of marriage. Shortly before his 2011 arrest, he and his ex-wife reunited and defendant returned to live with his family in the former marital home. During their reconciliation, defendant gave his wife the PT Cruiser and signed over the vehicle's title to her. However, he continued to maintain the vehicle for her, taking it to the shop for maintenance and repairs when needed. In the fall of 2011, their relationship began to deteriorate and defendant again moved out of the marital residence. However, he continued to take the PT Cruiser to the shop when necessary.
After defendant had the car serviced for defendant in October 2011, his ex-wife began to notice unusual coincidences involving people knowing where she had been at various times and defendant showing up at locations where she was, without ever telling him she was going to be there. As a result, she contacted her brother who inspected her car and found a GPS device installed on the vehicle's steering column, which could not be observed without opening the fuse box under its dashboard. The ex-wife contacted the state police and they confirmed it was a GPS tracking device.
While his ex-wife was at the police barracks discussing the discovery of the GPS device, defendant was calling the station to inquire whether she was there filing a report about him, claiming he saw her car parked in the barrack's lot. The police asked defendant to come to the station and when he complied, they advised him of his Miranda rights. He stated he learned his ex-wife was at the police barracks by speaking with dispatch and acknowledged knowing police recovered a GPS tracking device from her vehicle.
Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed. 2d 694 (1966).
Defendant stated his ex-wife's brother told defendant's son who, in turn, told him.
Trooper Paul Cunning conducted an investigation of the matter. After an unsuccessful attempt to contact EnfoTrace, the manufacturer of the GPS tracking device, for additional information, he contacted Chris Konawel, the owner of NAS. Konawel confirmed NAS used EnfoTrace brand GPS tracking devices. He requested from Cunning the serial number of the device to "do some more research" and then get back to him. After their conversation, Konawel ran the serial number provided by Cunning and determined the device belonged to NAS.
On November 25, 2011, Konawel came to the barracks and provided Cunning with a tracing-log of the device. (Log Report) The report revealed the device was activated on October 3, 2011, the same day defendant took his ex-wife's vehicle for repairs and was last located on November 12, 2011, the day she contacted the state police. Overall, the report revealed 522 attempts to locate the device within a five week period. Most important, Konawel stated NAS did not install a tracking device on the vehicle at the time it was sold. Based on the evidence Cunning developed, the police arrested defendant and charged him with fourth-degree stalking.
Konawel testified that NAS would have an independent mechanic install the devices into vehicles, as needed. The devices were usually placed "[a]bove the speedometer" but "below the dashboard." Konawel stated this was for several reasons: to provide a clear signal, the devices are aesthetically displeasing, to prevent it from being easily removed and because it "ha[d] to [have] . . . a constant power supply. Even when the car isn't running, it ha[d] to be powered up."
During defendant's trial, the court admitted the Log Report into evidence for the limited purpose of indicating when it was activated and that numerous attempts were made to use it to locate the PT Cruiser. The report was never admitted for the purpose of demonstrating the device accurately located the vehicle.
After his trial, as part of defendant's sentencing, the court imposed a permanent restraining order prohibiting defendant from maintaining contact with his ex-wife, including "electronic, visual or physical proximity," causing third-parties to initiate contact with her on his behalf and barred him from her residence and place of employment.
On appeal defendant argues the court should not have admitted the Log Report because it lacked any scientific foundation, depriving him of his constitutional right to a fair trial, including confrontation of adverse witnesses. Specifically, defendant contends the report and its ability to accurately register attempted lookups was scientific evidence and was not established as reliable within the relevant scientific community. We disagree with the premise to defendant's argument.
We review evidentiary determinations with deference, upholding such findings absent an abuse of discretion. State v. J.A.C., 210 N.J. 281, 295 (2012); see also State v. J.D., 211 N.J. 344, 354 (2012) ("A trial court's decision to grant or deny an evidentiary application will generally be upheld unless it is so wide of the mark as to result in a manifest injustice." (citations and internal quotation marks omitted)). "A trial court's interpretation of the law, however, and the consequences that flow from established facts[,] are not entitled to any special deference." State v. Gamble, 218 N.J. 412, 425 (2014). See also State v. Gandhi, 201 N.J. 161, 176 (2010) ("It is a well-established principle of appellate review that a reviewing court is neither bound by, nor required to defer to, the legal conclusions of a trial . . . court.").
When scientific evidence is being offered, it must be supported by evidence that must be "generally accepted, within the relevant scientific community." State v. Chun, 194 N.J. 54, 91, cert. denied, 555 U.S. 825, 129 S. Ct. 158, 172 L. Ed. 2d 41 (2008). See also State v. Harvey, 151 N.J. 117, 170-71 (1997). This inquiry centers on "whether the technique or mode of analysis has sufficient scientific basis to produce uniform and reasonably reliable results and will contribute materially to the ascertainment of the truth." State v. Lenin, 406 N.J. Super. 361, 379 (App. Div.), certif. denied, 200 N.J. 477 (2009).
The results of the GPS tracking device were not, however, offered into evidence. If offered, those results would require the appropriate scientific foundation to support a contention that the device could accurately locate the vehicle. Here, the Log Report was only offered and admitted as a computer record of the GPS device being activated. As a result, the scientific community's acceptance of the device's reliability was not relevant and the document's trustworthiness can be established by lay, as compared to expert, testimony.
"So long as the proponent of [computer generated] documents can satisfactorily attest to the circumstances under which it acquired the documents on which it relies, the documents should be admissible as business records under N.J.R.E. 803(c)(6)." New Century Fin. Servs. v. Oughla, 437 N.J. Super. 299, 323 (App. Div.), certif. denied, 218 N.J. 531 (2014); see also Hahnemann Univ. Hosp. v. Dudnick, 292 N.J. Super. 11, 18 (App. Div. 1996) ("There is no reason to believe that a computerized business record is not trustworthy unless the opposing party comes forward with some evidence to question its reliability."). To admit an electronic or "systematically prepared" computer record into evidence, a foundation witness must demonstrate (1) the document is what it purports to be; (2) a sufficient familiarity with the recording system used and (3) establish it was that business's regular practice to compose such a record. Biunno, Weissbard & Zegas, Current N.J. Rules of Evidence, cmt. 2 on N.J.R.E. 803(c)(6) (2014) (citing Hahnemann, supra, 292 N.J. Super. at 18); see also State v. Swed, 255 N.J. Super. 228, 236-38 (App. Div. 1992). Under this standard, the witness need not have personal knowledge of facts contained within the document. Hahnemann, supra, 292 N.J. Super. at 17-18; see Biunno, et. al., supra, cmt. 2 on N.J.R.E. 803(c)(6) ("Since computers today are presumed to be reliable, no testimony concerning their inner workings or the reliability of the programs that they use is any longer necessary to lay a foundation for computer printouts.").
Because these proceedings are criminal, there is also a requirement that the proffered evidence does not violate the Confrontation Clause. Biunno, et. al., supra, cmt. 1 on N.J.R.E. 803(c)(6). See Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004). By their nature, however, business records are presumed non-testimonial and therefore do not implicate constitutional guarantees. State v. Sweet, 195 N.J. 357, 372 (2008) (citing Crawford, supra, 541 U.S. at 56, 124 S. Ct. at 1367, 158 L. Ed. 2d at 195), cert. denied, 557 U.S. 934, 129 S. Ct. 2858, 174 L. Ed. 2d 601 (2009). See also Chun, supra, 194 N.J. at 139.
Here, the State satisfied all three of the Hahnemann requirements with Konawel's testimony. On direct, Konawel testified about the report, verifying it to be the log for the device found in the car and that he generated it through his company computer. Konawel displayed a sufficient familiarity with the EnfoTrace software, although he acknowledged he had "little to no[]" training with its use. He explained how he accessed information, displayed an adequate degree of knowledge about the report's contents, and testified that he relied on its "accuracy . . . in doing business." Lastly, Konawel testified that a report is regularly generated by EnfoTrace for each device he uses, logging each attempted "look-up" in addition to an automated monthly checkup referred to as a "heartbeat."
Having satisfied the test in Hahnemann, the burden shifted to defendant to "produc[e] evidence showing that the record [was] not trustworthy." Biunno, et. al., supra, cmt. 2 on N.J.R.E. 803(c)(6). Defendant attempts to undermine Konawel's testimony, characterizing it as vague, confusing and lacking "a real understanding of where the EnfoTrace lookup data came from or how the report was generated." These statements, however, are belied by the facts. Contrary to defendant's position, the reliability of the report was not "improperly assumed . . . [nor] derived from technological wizardry."
Because the disputed evidence actually offered at trial was not scientific, Konawel's testimony adequately verified the report as trustworthy and defendant failed to produce any evidence showing otherwise. Accordingly, the court did not abuse its discretion by admitting the report into evidence.
Also, the court made sure the jury understood the limited purpose for which the Log Report was being admitted. It instructed the jury:
You're going to have, and they've been marked into evidence, the record of the device itself, how many times it hit.
That's not introduced to prove the accuracy of the locations or . . . who [performed those searches]. What that's there to show is . . . there were a series of contacts, hits, lookups on that device. That[ is] all that's there to show [you].
So it's [offered for] a limited purpose . . . and [it] should only be considered by you for that purpose, . . . to demonstrate that it was looked at any number of times.
In light of the State's narrow use of the report and the court's limiting instruction, an inquiry into the scientific reliability of the report was unnecessary. More akin to phone records than scientific data, reading and interpreting this information did not require expert testimony as to its reliability within the scientific community. See U.S. v. Kale, 445 Fed. Appx. 482, 485 (3d Cir. 2011) (stating that reading and interpreting cell phone records does not require "a technical background"). The State supplied a proper foundation to admit the report as a business record. See N.J.R.E. 803(c)(6).
Having determined defendant obtained a fair trial, we turn our attention to his argument regarding the breadth of the restraining order entered against him pursuant to N.J.S.A. 2C:12-10.1(b). Defendant argues the prohibition within the order is overbroad and unenforceable, requiring a remand to reformulate the order that: "Defendant is prohibited from maintaining electronic, visual or physical proximity or having any oral, written or other forms of communication with [his ex-wife.]" Specifically, defendant contends "maintaining . . . physical proximity" from her is an "impossible-to-obey term [and] unauthorized by statute, which requires that the forbidden places be specifically stated."
A stalking conviction triggers "an application [and hearing] for a permanent restraining order limiting the contact of the defendant and the victim who was stalked." N.J.S.A. 2C:12-10.1(a). Pursuant to the statute, the court may enter:
(1) An order restraining the defendant from entering the residence, property, school, or place of employment of the victim and requiring the defendant to stay away from any specified place that is named in the order and is frequented regularly by the victim[; or]
(2) An order restraining the defendant from making contact with the victim, including an order forbidding the defendant from personally or through an agent initiating any communication likely to cause annoyance or alarm including, but not limited to, personal, written, or telephone contact, or contact via electronic device, with the victim, the victim's employers, employees, or fellow workers, or others with whom communication would be likely to cause annoyance or alarm to the victim. . . .
[N.J.S.A. 2C:12-10.1(b).]
Defendant relies on our holding in State v. S.K., 423 N.J. Super. 540 (App. Div. 2012), a domestic violence case, N.J.S.A. 2C:25-17 to -35. In S.K., the defendant was convicted of contempt for violating a final restraining order protecting his ex-wife when they both attended a school athletic event to watch their child compete. We held the restraining order to be "overly broad and virtually impossible for [the] defendant to obey at all times." Id. at 547. We stated:
Here, the relevant provision of the order does not name or describe a specific place from which [the] defendant is barred but generally prohibits him from wherever his ex-wife may be. The domestic violence statute does not authorize such a prohibition. . . .
The order that was entered in this case does not describe the "other places" from which [the] defendant is barred. [The d]efendant's predicament was similar to that in State v. Finamore, 338 N.J. Super. 130, 132 (App. Div. 2001), where we held that a charge of contempt was defective because the restraining order "was unclear . . . and the defendant's actions that prompted the contempt charge could not, as a matter of law, be found to constitute a knowing violation of an existing domestic violence restraining order."
Domestic violence orders can and typically do prohibit contact and communications with the victim, or harassment and stalking of the victim, no matter where that conduct occurs. N.J.S.A. 2C:25-29(b)(7) and (17). But it is conduct rather than location that is the focus of those restraints.
Nothing in the record before us provides factual support for prohibiting [the] defendant from being in the same general location as his ex-wife. [The d]efendant should not be compelled to abandon his lawful presence in a public or other location only because his ex-wife also chooses to be present in the same general location. Such an order puts [the] defendant at risk of being arrested and charged, as occurred in this case, for otherwise innocent conduct, such as watching his children play soccer, going to their school, or shopping at a grocery store.
[Id. at 545-46 (emphasis added) (brackets omitted).]
We agree with defendant that a portion of the restraining order entered against him suffers from the same infirmities as that in S.K. A plain-language interpretation of the statute reveals an intent to prevent further stalking by "limiting the contact [between] the defendant and the victim who was stalked." N.J.S.A. 2C:12-10.1(a). To effectuate this purpose, trial court may enter an order "restraining the defendant from entering . . . any specified place . . . frequented regularly by the victim." N.J.S.A. 2C:12-10.1(b) (emphasis added). Although the restraints in S.K. were promulgated under the domestic violence statute and thus non-binding in criminal proceedings, both statutes have similarities in that "it is [the] conduct[,] rather than location[,] that is the focus of those restraints." S.K., supra, 423 N.J. Super. at 546.
Here, although aimed at preventing further stalking of defendant's ex-wife, a part of the restraint exceeds the specificity required by the statute. By generally limiting defendant from "maintaining . . . visual or physical proximity" with her, in addition to barring him from her home and place of employment, "[s]uch an order puts defendant at risk of being arrested and charged . . . for otherwise innocent conduct," such as attending a parent-teacher conference for his children "or [even] shopping at [the local] grocery store." S.K., supra, 423 N.J. Super. at 546. Accordingly, we are constrained to vacate the order and remand back to the trial court to amend or delete the overbroad provision, restraining defendant from "maintaining . . . visual or physical proximity."
Affirmed in part and remanded in part for entry of a revised restraining order. Pending review by the trial court, the restraint remains in full force and effect, but for the identified language. 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
A violation of these prohibitions are treated as an obstruction of justice, punishable by a charge of contempt. N.J.S.A. 2C:12-10.1(f). See also N.J.S.A. 2C:29-9(a) (stating a person is guilty of contempt if he or she "purposely or knowingly disobeys a judicial order or protective order, . . . or hinders, obstructs or impedes the effectuation of a judicial order").