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State v. Banko

November 18, 2003

STATE OF NEW JERSEY, PLAINTIFF-APPELLANT,
v.
MICHAEL W. BANKO, DEFENDANT-RESPONDENT.



On appeal from Superior Court of New Jersey, Law Division, Bergen County, Docket Number S-2233-99.

Before Judges Petrella, Collester and Fuentes.

The opinion of the court was delivered by: Fuentes, J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued September 29, 2003

The State appeals the order of the Law Division vacating a jury verdict convicting defendant of second-degree possession of a firearm for an unlawful purpose, N.J.S.A. 2C:39-4a, and ordering a new trial. The same jury acquitted defendant of attempted aggravated sexual assault, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:14-2a(4), first-degree kidnapping pursuant to N.J.S.A. 2C:13-1b(1) and fourth-degree aggravated assault by pointing a firearm, N.J.S.A. 2C:12-1b(4).

We originally denied the State's motion seeking leave to appeal the trial court's order. Thereafter, the Supreme Court granted the State's motion for leave to appeal and summarily remanded the case to us to consider the appeal on the merits. State v. Banko, 175 N.J. 426 (2003).

Although defendant did not file a cross-appeal, he nevertheless raises the following arguments:

I. THE DEFENDANT IS ENTITLED TO A NEW TRIAL BECAUSE HIS EXCLUSION FROM JURY VOIR DIRE VIOLATED HIS CONSTITUTIONAL RIGHT TO A FAIR TRIAL

II. THE DEFENDANT IS ENTITLED TO A NEW TRIAL BECAUSE THE PUBLIC'S EXCLUSION FROM JURY VOIR DIRE VIOLATED HIS CONSTITUTIONAL RIGHTS AND DENIED HIM A FAIR TRIAL

III. THE DEFENDANT IS ENTITLED TO A NEW TRIAL BECAUSE IMPERMISSIBLE FACTORS CREATED AN UNACCEPTABLE RISK THAT THE JURY'S VERDICT WOULD BE TAINTED IN VIOLATION OF THE DEFENDANT'S CONSTITUTIONAL RIGHTS

a. The heightened security surrounding the handling of the BB gun throughout the trial created an unacceptable risk that the jury's opinion regarding the reasonableness of Carmen Miles'[s] alleged fear would be tainted

b. The prosecutor's and her witnesses' repeated failure to abide by the trial court's order to refer to Carmen Miles as the"alleged victim" created an unacceptable risk that the jury's verdict would be tainted

c. The trial judge's intrusive questioning of the defendant strongly suggested his disbelief of his testimony, substantially impacting the defendant's credibility, creating an unacceptable risk the jury's verdict would be tainted

IV. THE DEFENDANT IS ENTITLED TO A NEW TRIAL BECAUSE THE CUMULATIVE EFFECT OF THE TRIAL ERRORS DENIED HIM A FAIR TRIAL

After a careful review of the record and the relevant law, we conclude that the jury's verdict finding defendant guilty of second-degree possession of a firearm for an unlawful purpose cannot stand.

The following salient facts were developed from the evidence presented at trial.

I.

Defendant met the complaining witness, Carmen Miles, in the evening hours of April 30, 1999, at a Manhattan bar. The two had not known each other before that night. Miles and a co worker, Carmen Hernandez, arrived at the bar first. Defendant arrived sometime thereafter in the company of an acquaintance, Raymond Surgey.

Defendant and Miles struck up a conversation. They discussed such topics as Miles's recent move to New York City from Georgia and her current relationship with her live-in boyfriend. At one point in the conversation, the topic of firearms came up. According to Miles, she remembers telling defendant that her father had taught her to handle"a small pistol, a.22 pistol" or a".22 rifle." She recalls, however, that she was the one who introduced the topic of firearms into the conversation as a"joke" about her southern upbringing.

Miles also testified that defendant attempted to kiss her in the bar and talked about starting a relationship with her. She told him, however, that she was not interested because of her desire to maintain a relationship with her boyfriend.

Defendant and Miles agreed that they both consumed a number of alcoholic beverages while at the bar. At approximately 9:00 p.m., Miles announced that she was leaving to catch the last Port Authority bus home at 9:30 p.m. The group, including defendant, persuaded her to stay and dine at another restaurant/bar. Surgey offered Miles to have his car service take her home. She agreed and the foursome proceeded to the restaurant in Surgey's chauffeur-driven car service.

After dinner and dancing, Miles again voiced her desire to leave with the hope of getting home by 1:00 a.m. After some discussion, Miles decided to leave with defendant using Surgey's car service. She anticipated that the driver would take defendant home first and then proceed to take her to her house.

At trial, the parties gave different accounts of what transpired during the car ride. Defendant testified that they kissed. Miles denied this. Defendant claimed that Miles willingly went inside his apartment. Miles said that defendant"tugged" her arm and said that he wanted ...


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