June 13, 2007
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
ANTHONY VITO CARLINO, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Passaic County, 03-10-0936-I.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued November 15, 2006
Before Judges Collester, Sabatino and Messano.
Tried to a jury, defendant Anthony Vito Carlino was convicted of the second-degree crime of attempted kidnapping, contrary to N.J.S.A. 2C:13-1(b)(1); luring or enticing a child, a third-degree offense, contrary to N.J.S.A. 2C:13-6; and the third-degree offense of attempted endangering the welfare of a child, contrary to N.J.S.A. 2C:24-4(a) and 2C:5-1(a)(3).
The charges related to an incident on May 3, 2003, sometime between 7 and 8 a.m. in the City of Paterson. Ten-year-old Q.C., a fifth-grade student, was walking up Hamilton Avenue toward her elementary school located at the intersection of Carroll Street. Before she arrived at the school, she sat on a step to tie her shoe. She testified that a burgundy or red van with tinted windows pulled up ahead of her, then backed up. The male driver lowered the passenger side window, called out to ask her whether she wanted to go for a ride, and said "something about candy." Q.C. described the man as looking "scary" with a scar on his nose. She said he got out of the van and stood looking at her. Q.C. said she was "real scared" and said "I have to ask my mom." She ran to the corner of Hamilton and Carroll, looked back and saw the van backing up toward her. Starting to cry, she ran into the school and told Algenis Dox, the security guard at the front desk, that "some man's trying to pick me up."
Dox testified that Q.C. was crying and scared and told him that a white man in a red or burgundy van offered her a piece of candy and told her to come inside the van with him. Dox went outside and saw nothing, but as he walked to the school's main entrance, he saw a burgundy van at the intersection of Carroll and Broadway. The van was stopped and remained so for about a minute as the driver looked toward the school and drove off. Dox saw the van circle the block to the stop sign back to the corner of Hamilton and Carroll where the van stopped again for about a minute and a half with the driver looking toward the school. Dox stood there and saw the van come around the corner again. This time he got a good look at the driver's face through the front untinted window. Dox saw two Paterson patrol cars coming toward the school and flagged them down. He told the officers what Q.C. told him and described the van. After the patrol unit radioed this information, Officer Uri Polanco stopped the van about three blocks from the school. The patrol unit arrived with Dox, who identified the defendant as the same man he had seen in the van by the school. Defendant was brought to the school and was identified by Q.C. as the man in the van. He was then placed in custody and taken to Paterson police headquarters.
Detective Sergeant James Beatrice of the Passaic County Prosecutor's Office Child Abuse Special Victims Unit met with defendant and advised him of his Miranda*fn1 warnings. Defendant signed a waiver form and agreed to make statement. He told Detective Beatrice that he had gone to a concert in Morristown the night before and had left about 3 a.m. to return to his home in Valley Stream, New York. He said that he was tired and pulled over at about 3:30 or 4 a.m. to sleep. When he woke up about 7 or 7:30 a.m., he drove around looking for someone to give him directions to get on Route 80. He said he was unfamiliar with the area and did not know that he was in Paterson until he was arrested. Defendant also told Beatrice that he had had laser eye surgery and could not see things far away. He explained that he saw a person he believed to be a woman sitting on the sidewalk and pulled over to ask directions. At that time he realized it was a little girl. He said when he asked her for directions, she ran away.
Detective Beatrice told defendant that the girl reported that he had asked her if she wanted a ride, offered her candy, and got out of the van. Defendant denied saying or doing any such things. He said that the van was registered in North Carolina and used by him in his job of repossessing motor vehicles. He said that inside were a blanket, pillow, pad and camera. When Detective Beatrice asked if he could search the van, the defendant asked why. Beatrice then asked if there was anything in the van that he did not want the detective to see.
Defendant said, "It's not like I have rope or tape or anything in there."
On May 4, 2003, Detective Maura Papagni of the Child Abuse Unit along with other detectives executed a search warrant on the 1996 Burgundy Ford Econoline Van. Detective Papagni testified that found inside defendant's van were breath mints, two bottles of Vaseline lotion, three condoms, an open condom wrapper, a pillow, sheets, pillow case, blanket, a roll of masking tape, and white twine-style rope. Over defense objection, these items were entered into evidence along with a photograph depicting their location in the van.
Defendant testified in his own defense, repeating the version he told Detective Beatrice, including his denial that he offered Q.C. candy or tried to get her into the van to abduct her. Following the jury verdict, on February 18, 2005, defendant was sentenced by Judge Ronald G. Marmo to seven years with eighty-five percent parole ineligibility under the No Early Release Act (NERA) in addition to three years of parole supervision upon release plus mandatory fees and fines.
On appeal defendant makes the following arguments:
POINT I -- DEFENDANT ANTHONY CARLINO WAS DENIED HIS UNITED STATES CONSTITUTIONAL RIGHT AND NEW JERSEY STATE RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AND TO DUE PROCESS AS GUARANTEED BY THE SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND BY ARTICLE 8, PARAGRAPH 10 OF THE NEW JERSEY STATE CONSTITUTION DUE TO THE NUMEROUS PRETRIAL, TRIAL, AND POST-TRIAL ERRORS; A PRESUMPTION OF PREJUDICE EXISTS OR, AT THE VERY LEAST, A REASONABLE PROBABILITY EXISTS THAT, BUT FOR THE ERRORS THE RESULT OF THE TRIAL WOULD HAVE BEEN DIFFERENT (THIS ISSUE WAS RAISED BELOW BY THE DEFENDANT).
POINT II -- THE ADMISSION INTO EVIDENCE OF CERTAIN ITEMS SEIZED FROM THE DEFENDANT'S VAN VIOLATED THE DEFENDANT'S FOURTEENTH AMENDMENT DUE PROCESS AND NEW JERSEY STATE CONSTITUTIONAL RIGHT TO A FAIR TRIAL AND VIOLATED N.J.R.E. 403.
POINT III -- THE TRIAL JUDGE ERRED IN REFUSING TO GRANT A JUDGMENT OF ACQUITTAL IN FAVOR OF DEFENDANT AS TO ALL COUNTS; THE STATE FAILED TO ESTABLISH DEFENDANT'S GUILT BEYOND A REASONABLE DOUBT CONTRARY TO THE FOURTEENTH AMENDMENT TO THE UNTIED STATES CONSTITUTION AND STATE CONSTITUTION.
POINT IV -- THE DEFENDANT'S SENTENCE IS EXCESSIVE, NOT IN CONFORMANCE WITH CASE LAW AND THE SENTENCING GUIDELINES, AND MUST BE REVERSED OR REDUCED BY THIS COURT.
In alleging the ineffective assistance of counsel, defendant relates that he received and rejected an offer from the State in exchange for a guilty plea of a probationary sentence conditioned on a maximum of ninety days in the Passaic County Jail. He rejected the plea offer on the record and expressed his dissatisfaction with his trial attorney's representation because the attorney had not filed certain pretrial motions and was not prepared to call certain defense witnesses. Defendant said he was prepared to hire another attorney. Judge Marmo denied defendant's application for a mistrial, and the trial proceeded. On appeal defendant expands upon his claim of ineffective assistance of counsel by alleging that his trial attorney failed to investigate and present witnesses; failed to file a motion to suppress items seized from the van; failed to adequately challenge the admissibility of his statement to Detective Beatrice; and failed to adequately cross-examine State witnesses and properly present the defense case.
The Sixth Amendment to the United States Constitution guarantees every criminal defendant the right to effective assistance of legal counsel in his or her defense. Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 2063, 80 L.Ed. 2d 674, 692 (1984); United States v. Cronic, 466 U.S. 648, 659, 104 S.Ct. 2039, 2047, 80 L.Ed. 2d 657, 668 (1984). Strickland sets forth a two-prong test for a defendant to succeed on a claim of ineffective assistance:
First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable. [Strickland, supra, 466 U.S. at 687, 104 S.Ct. at 2064, 80 L.Ed. 2d at 693.]
The two-prong standard of Strickland was adopted by our Supreme Court. State v. Fritz, 105 N.J. 42, 58 (1987). Adequate assistance of counsel is to be measured by a standard of "reasonable competence." Id. at 60-61. The standard does not require "the best of attorneys," but rather requires that attorneys be "not . . . so ineffective as to make the idea of a fair trial meaningless." State v. Davis, 116 N.J. 341, 351 (1989).
In general, our courts subscribe to a general policy against raising ineffective assistance of counsel claims on direct appeal, because they typically involve allegations and evidence that lie outside the trial record. State v. Loftin, 287 N.J. Super. 76, 111 (App. Div.) certif. denied, 144 N.J. 175 (1996). Rather, such claims are best reserved for a future potential application for post-conviction relief during which the record may be expanded with appropriate proofs outside the trial transcripts. See State v. Preciose, 129 N.J. 451, 460-61 (1992); State v. Sparano, 249 N.J. Super. 411, 419 (App. Div. 1991). That general policy is applicable to this case.
Therefore, we do not reach this ground of appeal and permit the defendant to raise the issue on post-conviction relief if he so desires.
Defendant next argues that the admission into evidence of items seized from the van as well as photographs of the interior of the van depicting the position of such items constituted reversible error because the probative value of such evidence was substantially outweighed by the risk of undue prejudice under N.J.R.E. 403. State v. Carter, 91 N.J. 86, 106 (1982). See also State v. Cowell, 157 N.J. 554, 569 (1999) (relevant evidence loses some of its probative value to the extent that it becomes more "cumulative"). Our scope of review of a trial judge's admission or exclusion of proffered evidence gives considerable weight to the discretion of the trial judge. See, e.g., State v. Ramseur, 106 N.J. 123, 322 (1987); State v. Sands, 76 N.J. 127, 144 (1978). To reverse, a reviewing court must find a palpable abuse of discretion, a "finding so wide of the mark that a manifest denial of justice resulted." Green v. New Jersey Mfrs. Ins. Co., 160 N.J. 480, 492 (1999); Carter, supra, 91 N.J. at 106; State v. Swint, 328 N.J. Super. 236, 253 (App. Div.), certif. denied, 165 N.J. 492 (2000). With regard to the balancing process required by N.J.R.E. 403 of determining whether probative value of relevant evidence is outweighed by undue prejudice, the trial judge is in the best position to make the determination based on intimate knowledge of the case. Ramseur, supra, 106 N.J. at 266.
In this case the State had the burden of proving defendant's unlawful purpose in the alleged luring and attempted kidnapping offenses. The State's theory was that defendant intended to engage in some type of sexually assaultive behavior on the ten-year-old child and that, while the items were in themselves innocuous, when considered collectively in the totality of circumstances, the jury could reasonably infer the unlawful purpose. In holding that the probative value of the proffered evidence was not outweighed by the potential of undue prejudice, Judge Marmo stated:
Now, to look at this in the context of this case, where the defendant approaches this ten-year-old and is trying to, allegedly, if you accept the State's evidence, is attempting to entice her into this van and, for no apparent reason at all to be doing that. They are total strangers to one another and there is a statement, allegedly attributed to him about "you'll have fun" and the offer of candy.
The State has to prove that there was a purpose involved in this. And, of course, the evidence is highly relevant to the State's theory of the case. The defense has a very different posture to suggest about this. But the State has to prove this purpose which is the difficult element, generally, in this kind of situation when someone approaches a child and is attempting to bring them into a vehicle. It's very difficult, ordinarily, to establish what the motive for that might be because you wouldn't expect there to be much indicia of that.
There are things here, for example, the rope and tape, obviously the argument suggests some consciousness on the part of defendant about rope and tape being in the vehicle. . . .
* * * [The items] are not things which are sinister, in and of themselves. There's nothing sinister about a ball of twine or a roll of twine or tape or a pillow or a blanket. However, in the context of this case, the State contends they are meaningful and I am satisfied that there's a reasonable basis for the State to make that argument and leave it to the jury.
Judge Marmo properly considered the State's offer and the defense objection in applying the balancing test under N.J.R.E. 403(b). We find no abuse or misapplication of discretion in admitting the items into evidence.
Defendant next addresses the denial of his motion for judgment of acquittal. He asserts that the State failed to prove beyond a reasonable doubt that he committed a "substantial step" necessary to constitute an attempt to kidnap and that the State's proofs did not establish a criminal purpose to unlawfully lure or entice the child. There is no merit to this contention. While a court must grant a motion to acquit if the evidence is insufficient to warrant a conviction, R. 3:18-1, a reasonable jury in these circumstances could consider the State's evidence in its entirety and draw reasonable inferences to find defendant guilty beyond a reasonable doubt. State v. Reyes, 50 N.J. 454, 458-59 (1967); State v. Moffa, 42 N.J. 258, 263 (1964). Testimony of Q.C. and Dox, together with defendant's admissions to police and the evidential value of the items seized from the van, permit the reasonable inference that defendant intended to commit some form of sexual assault upon Q.C. and satisfied the elements of the child-luring and child-endangerment charges.
To prove a criminal attempt, it is necessary for the State to show not only a criminal purpose, but also that defendant took a "substantial step" in the commission of the crime. State v. Perez, 177 N.J. 540, 554-55 (2003) (holding that a jury could determine that defendant had taken a substantial step toward committing an act of child endangerment based on defendant's words and actions in tandem, in light of the total circumstances from which the jury could draw the inference); State v. Farrad, 164 N.J. 247, 258 (2000). In this case the State's proofs were sufficient to satisfy the substantial step requirement based on the testimony of Q.C. that defendant pulled up next to her, asked her to go for a ride, offered her candy as an enticement to get into the van, got out of the van heading toward Q.C., returned to the van and then backed up toward her. Such actions each constituted a substantial step toward committing the crimes of kidnapping and child endangerment.
In imposing sentence, Judge Marmo properly considered and weighed aggravating and mitigating factors and sentenced defendant to the presumptive penal term of seven years and applied NERA. Defendant's argument that his sentence was excessive and not in conformance with sentencing guidelines is without merit, requiring no further comments. R. 2:11-3(e)(2).