June 11, 2007
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
JANUSZ OLEKSAK, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 04-08-1356.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted March 14, 2007
Before Judges Parrillo and Sapp-Peterson.
A jury convicted defendant Janusz Oleksak of fourth-degree criminal trespass and weapons offenses. Defendant contends his conviction must be reversed because the court committed reversible error when it (1) denied his motion to dismiss the indictment, (2) improperly admitted photographs and testimony related to an alleged assault upon his girlfriend, and (3) imposed a sentence that was manifestly excessive and contrary to State v. Natale, 184 N.J. 458 (2005) (Natale II). The State concedes that defendant is entitled to a remand for re-sentencing pursant to Natale II. We otherwise affirm defendant's conviction.
Defendant's conviction arose out of a domestic violence dispute that occurred on April 28, 2004, in his girlfriend's apartment. The matter then escalated into an incident involving his girlfriend's neighbor, George Shader, who lived in a room within the same apartment house, and to whom his girlfriend ran for assistance. Shader, upon hearing loud noises, was in the process of calling the police when defendant's girlfriend and then defendant entered his room. The entire ruckus in Shader's room was picked up by the police dispatcher because Shader never terminated the call. When the police arrived on the scene, defendant apparently became aware of their presence and fled. He returned to Shader's room the next day and attempted to apologize. Shader again called the police, who arrived and arrested defendant. As a result of the April 28, 2004 incident, police charged defendant with the disorderly persons offenses of simple assault, N.J.S.A. 2C:12-1(a), and hindering apprehension, N.J.S.A. 2C:29-3. He was also charged with resisting arrest, N.J.S.A. 2C:29-2, stemming from an unrelated March 26, 2004 incident. On May 25, 2004, defendant pled guilty to the hindering and resisting arrest charges. The court dismissed the simple assault charge as merged into these two offenses. Defendant was sentenced to serve fifteen days in jail, and the appropriate fines and penalties were imposed.
Based on the April 28, 2004 altercation, on June 10, 2004, Shader filed a complaint which led to an indictment charging defendant with second-degree burglary, N.J.S.A. 2C:18-2 (Count One); third-degree terroristic threats, N.J.S.A. 2C:12-3(b) (Count Two); third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d) (Count Three); and fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(d) (Count Four).
Defendant filed a motion to dismiss the indictment, contending that all of the charges stemming from the April 28, 2004 incident should have been resolved in a single proceeding. The court rejected this argument finding,
The defendant now seeks to dismiss the indictment or, alternatively, hear testimony from the State regarding the threat and any disposition or treatment of these matters. The defendant asserts the indictment should be dismissed based on due process considerations as well as concepts of administration of justice, fundamental fairness and mandatory joinder.
The defendant submits that the knowledge of the defendant's pending municipal court charges was imputed to the State and the defendant reasonably assumed that his appearance before municipal court resolved all pending charges.
N.J.S.A. 2C:8-1(b) and Rule 3:15-1 provide that a defendant shall not be subject to separate trials with multiple criminal offenses based on the same conduct or arising from the same episode if such offenses are known to the appropriate prosecuting officer at the time of the commencement of the first trial and are within the jurisdiction and venue of a single court.
Knowledge of the scale and scope of criminal offenses arising from the same episode as municipal court charges will generally not be imputed to the prosecuting officer until the complaint alleging the indictable offense is forwarded. State v Tsoi, 217 N.J. Super. 290.
The State contends, while the municipal court charges and criminal offenses arose from the incidents of April 28th, they both involve separate victims, which is the case. The disorderly persons charges, which were under the sole jurisdiction of the municipal court were resolved on May 25, 2004 and were related to domestic violence matters against the female victim and the defendant's flight to prevent his arrest.
Although the police officers who responded to the scene were aware of Mr. Schader's [sic] allegations and the facts are as indicated by the attorney, the female victim in the domestic violence dispute with the defendant had fled to the apartment of Mr. Schader [sic] next door when the second incident occurred. And, although the police were aware of his allegations, they exercised discretion and chose not to bring charges against the defendant. Instead, Mr. Schader [sic] was advised of how to file a complaint. He subsequently did so, on June 10, 2004, after the municipal court proceedings had been completed.
The State represents the Prosecutor's office had no knowledge of the case until after Mr. Schader's [sic] complaint, which contained indictable offenses and, of course, were subject to the jurisdiction of the Superior Court, which, again, would impact the Rule which talks about within the jurisdiction and venue of a single court.
The Court finds that there's a legitimate distinction that can be drawn between the domestic violence altercation between the defendant and Ms. Arciszewska and a subsequent victim, which occurred after the fact when he fled and broke into the apartment next door allegedly.
There's no showing here of prosecutorial vindictiveness or bad faith, which would result in this Court finding that fundamental fairness and due process as being denied to Mr. Oleksak. Moreover, double jeopardy does not apply since the indictable offenses contain different elements from the disorderly persons offenses.
Finally, this Court is not persuaded that Mr. Oleksak could have reasonably expected that the municipal court charges, for which he received 15 days in jail and $1,000 fines, which he defined as minimal, encompass the extent of the defendant's actions against the second victim, Mr. Schader [sic].
The matter proceeded to trial before Judge Grasso. Over defendant's objection, the court permitted the State to elicit testimony from Shader related to the physical condition of defendant's girlfriend at the time of the incident and to introduce photographs that purportedly depicted her condition. The court found that this evidence was part of the res gestae of the criminal offenses committed against Shader and were therefore relevant and admissible.
The jury convicted defendant of trespassing, a lesser included offense of the burglary charge, and all of the remaining charges. At sentencing, the court found aggravating factors three, six and nine: the defendant's abuse of alcohol, his prior record, and the need to deter. The court found no mitigating factors. Defendant was sentenced to a five-year custodial term with a two-year period of parole ineligibility, to run consecutive to a probation violation that defendant was already serving. Defendant's appeal followed.
On appeal defendant raises the following points for our consideration:
THE TRIAL COURT ERRED IN FAILING TO DISMISS THE INDICTMENT
THE DEFENDANT WAS DENIED HIS RIGHT TO A FAIR TRIAL BY REASON OF THE TRIAL COURT PERMITTING TESTIMONY AND PHOTOGRAPHS REGARDING THE ALLEGED AS[S]AULT ON HIS GIRLFRIEND
THE SENTENCE WAS MANIFESTLY EXCESSIVE
UNDER THE HOLDING OF THE NEW JERSEY SUPREME COURT IN STATE V. NATALE (NATALE II) THE COURT'S SENTENCE VIOLATES THE DEFENDANT'S SIXTH AMENDMENT GUARANTEE TO A JURY TRIAL
The thrust of defendant's argument that the indictment should have been dismissed is that given the time between the occurrence of the offenses involving his girlfriend, Shader, and the police, all of the offenses arising out of the April 28, 2004 incident for which he was subsequently charged and, as to some, indicted, should have been joined in a single prosecution rather than piecemeal in both Municipal Court and Superior Court.
There is no question that the Superior Court had jurisdiction to dispose of the disorderly persons offenses for which defendant was charged. See State v. DeLuca, 108 N.J. 98, 111 (1987), cert. denied, 484 U.S. 944, 108 S.Ct. 331, 98 L.Ed. 358 (1987); see also State v. Tenriero, 183 N.J. Super. 519, 520-21 (Law Div. 1981). Defendant's argument, however, ignores the chronology of events. The Municipal Court charges arose out of complaints filed by the Lakewood Township Police. For reasons unexplained in the record, the arresting officer determined not to file charges against defendant based upon the incident with Shader, but advised Shader of complaint procedures. One month after the Municipal Court matters were resolved, Shader filed burglary and terroristic threat charges against defendant. Because the offenses were indictable, they were forwarded to the Ocean County Prosecutor's Office for appropriate action pursuant to Rule 3:2-1(b), which requires that complaints alleging indictable offenses "shall be forwarded to the prosecutor within 48 hours." No such requirement exists with respect to disorderly persons offenses.
Joinder of criminal offenses for purposes of prosecution is addressed in both the Criminal Code and Court Rules.
N.J.S.A. 2C:1-8 provides that a defendant shall not be subject to separate trials for multiple criminal offenses based on the same conduct or arising from the same episode, if such offenses are known to the appropriate prosecuting officer at the time of the commencement of the first trial and are within the jurisdiction and venue of a single court. [N.J.S.A. 2C:1-8(b).]
Rule 3:15-1(b) provides in pertinent part, a defendant shall not be subject to separate trials for multiple criminal offenses based on the same conduct or arising from the same episode, if such offenses are known to the appropriate prosecuting officer at the time of the commencement of the first trial and are within the jurisdiction and venue of a single court. [Ibid.]
To invoke mandatory joinder of criminal offenses, a defendant must satisfy all four of the following criteria: (1) the multiple offenses are criminal; (2) the offenses are based upon the same conduct or arose from the same episode; (3) the appropriate prosecuting officer knew of the offenses at the time the first trial commenced; and (4) the offenses were within the jurisdiction and venue of the single court. State v. Yoskowitz, 116 N.J. 679, 701 (1989).
Here, as the trial court noted, defendant was unable to meet the third prong. There is no question that at the time of the disposition of the Municipal Court matters, there was no pending criminal investigation into Shader's allegations or any outstanding criminal charges involving defendant and Shader. Additionally, because the disorderly persons offenses were resolved by the time Shader filed his complaint, joinder was not mandated pursuant to Rule 3:15-3, which provides that "the court shall join any pending non-indictable complaint for trial with a criminal offense based on the same conduct or arising from the same episode." R. 3:15-3(a)(1) (emphasis added). Therefore, Judge Grasso properly denied defendant's motion to dismiss the indictment.
Defendant next contends the testimony and photographs of his girlfriend that the court ruled admissible bore no relevance to the prosecution of the charges against him, and any probative value of this evidence was far outweighed by the unduly prejudicial nature of the evidence. In addition, defendant argued that any testimony related to the alleged assault upon his girlfriend was also subject to constraints of N.J.R.E. 404(b).
The State proffered the photos as relevant to Shader's state of mind at the time defendant's girlfriend ran into his room and corroborative of Shader's testimony as to her condition. Moreover, the State argued that the evidence was appropriately admitted as rebuttal evidence after both defendant and his girlfriend, in their testimony, denied the assault and the injuries.
In admitting the evidence, Judge Grasso reasoned,
[g]iven the testimony of [Shader] concerning the passage of time, it strikes the Court that the altercation he heard and the injuries presumably incurred were in close proximity in time to the entry by the defendant into the apartment. He testified he observed injuries to the female. I think he testified as to his state of mind, and I think the jury would be entitled to weigh and consider this as part of the res gestae in the circumstances of what the Court would view as an ongoing set of events. [3T33.]
In State v. Cherry, 289 N.J. Super. 503 (App. Div. 1995), we stated that "[e]vidence of events that take place during the same time frame as the crime charged in the indictment will not be excluded if the evidence establishes the context of the criminal event, explains the nature of, or presents the full picture of the crime to the jury." Id. at 522.
Similarly, in State v. Pierro, 355 N.J. Super. 109 (App. Div. 2002), certif. denied, 175 N.J. 434 (2003), we concluded that evidence of items stolen, i.e. credit cards, in a previous burglary was admissible under the doctrine of res gestae in the trial for a second burglary because the defendant carried the items stolen in the first incident to the second and, during that incident, attempted to dispose of them.
The underlying premise of the res gestae doctrine is that a jury "cannot be expected to make its decision in a void --without knowledge of the time, place and circumstances of the acts which form the basis of the charge." United States v. Masters, 622 F.2d 83, 86 (4th Cir. 1980).
A trial judge's discretionary decision to admit or exclude evidence is reviewed under an abuse of discretion standard. State v. Ramseur, 106 N.J. 123, 266 (1987). "To demonstrate abuse of such discretion, the danger of undue prejudice must outweigh probative value so as to divert jurors 'from a reasonable and fair evaluation of the basic issue of guilt or innocence.'" State v. Moore, 122 N.J. 420, 467 (1991) (quoting State v. Sanchez, 224 N.J. Super. 231, 249-50 (App. Div.), certif. denied, 111 N.J. 653 (1988)).
We discern no error in the admission of testimony concerning the alleged assault upon defendant's girlfriend and the introduction of photographs depicting her physical appearance when she ran into Shader's room for help. As the judge ruled, this evidence was part of the res gestae of the criminal acts because the evidence placed in context the circumstances of Shader's involvement in the ongoing domestic dispute between defendant and his girlfriend that extended into his room where defendant, armed with a screwdriver, threatened to kill Shader.
The evidence was also relevant to a central issue in the case, whether Shader was put "in imminent fear of death under circumstances reasonably causing [Shader] to believe the immediacy of the threat and the likelihood that it will be carried out." N.J.S.A. 2C:12-3(b). Further, because the evidence was properly admitted as res gestae evidence, N.J.R.E. 404(b) was not implicated. State v Ortiz, 253 N.J. Super. 239, 243 (App. Div.), certif. denied, 130 N.J. 6 (1992). Moreover, the evidence was admissible to rebut the testimony of defendant and his girlfriend, who both denied that she was assaulted and injured. Finally, in an abundance of caution, the court provided the jury with a limiting instruction on its consideration of this evidence.
Further, if I give you a limiting instruction as to how to use certain evidence, that evidence must be considered by you only for that purpose, and you can use it for no other purpose. And in that regard, I do have a limiting instruction that I would like to give to you at this time.
During this trial, evidence was permitted in this case concerning events that may or may not have occurred between Mr. Oleksak and Ms. Arciszewska at the apartment earlier that evening prior to the events involving Mr. Shader. Now, the matter of any offense or charges between the defendant and Ms. Arciszewska is not before you for your consideration, nor should you speculate about any charges or offenses.
The evidence and photographs were permitted for the limited purpose and only for the purpose of assessing the credibility of the witnesses that came before you.
We must assume that the jury followed this instruction. State v. Muhammad, 145 N.J. 23, 52 (1996). Any prejudice flowing from the introduction of this evidence was minimized by this limiting instruction. Therefore, we reject defendant's contention that the introduction of this evidence deprived defendant of a fair trial.
Finally, the State concedes that the five-year sentence imposed is greater than the then statutory presumptive sentence for the third-degree offenses for which defendant was convicted. Defendant is therefore entitled to a new sentencing hearing. On remand, the sentencing judge shall follow the dictates of Natale II, supra, and State v. Abdullah, 184 N.J. 497, 513-14 (2005), in fixing the specific term. The judge may also consider imposition of a parole ineligibility term. N.J.S.A. 2C:43-7(b); Abdullah, supra, 184 N.J. at 511-12. The sentence shall be subject to the aggregate sentence originally imposed.
Remanded for re-sentencing. Otherwise, judgment of conviction is affirmed.
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