June 26, 2007
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
ANTHONY PETER FAVOROSO, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 05-01-0062.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued May 23, 2007
Before Judges Fuentes and Baxter.
Defendant Anthony Favoroso appeals from his conviction of second degree luring or enticing a minor into a motor vehicle, in violation of N.J.S.A. 2C:13-6 (count one); fourth degree attempted criminal sexual contact, in violation of N.J.S.A. 2C:5-1 and N.J.S.A. 2C:14-3(b) (count two); and third degree endangering the welfare of a child, in violation of N.J.S.A. 2C:24-4(a) (count three). The court sentenced defendant on count one to a seven-year term of imprisonment, and imposed the mandatory three-year term of parole ineligibility that is required by N.J.S.A. 2C:13-6. The court imposed an eighteen-month term of imprisonment on count two, and a four-year term of imprisonment on count three, concurrent to each other and to the sentence imposed on count one. The court imposed parole supervision for life in accordance with N.J.S.A. 2C:43-6.4, and required defendant to register as a sex offender pursuant to N.J.S.A. 2C:7-2. Appropriate fines and penalties were imposed.
On appeal, defendant presents the following arguments:
I. THE TRIAL COURT ERRED IN FAILING TO CHARGE THE LESSER INCLUDED OFFENSE OF DISORDERLY PERSONS LEWDNESS AS AN ALTERNATIVE TO THE CHARGE OF ATTEMPTED CRIMINAL SEXUAL CONTACT. THIS ERROR WARRANTS REVERSAL OF ALL THE CONVICTIONS.
II. THE VERDICTS WERE AGAINST THE WEIGHT OF THE EVIDENCE. THE TRIAL COURT SHOULD HAVE GRANTED THE TRIAL AND/OR POST TRIAL APPLICATIONS FOR A JUDGMENT OF ACQUITTAL OR FOR A NEW TRIAL. THE APPELLATE DIVISION SHOULD REVERSE THE VERDICTS NOW.
III. THE TRIAL COURT ERRED IN RULING THAT APPELLANT'S VERBAL STATEMENT TO THE POLICE WAS ADMISSIBLE FOLLOWING THE CONDUCT OF AN N.J.R.E. 104(c) HEARING. THE APPELLATE DIVISION SHOULD REVERSE THE DECISION OF THE TRIAL COURT.
IV. VARIOUS INSTANCES OF PROSECUTORIAL MISCONDUCT IN THE OPENING AND CLOSING STATEMENTS OF THE PROSECUTOR AND IN CROSS-EXAMINATION OF THE APPELLANT WARRANT REVERSAL OF THE CONVICTION.
V. TRIAL COUNSEL COMMITTED INEFFECTIVE ASSISTANCE OF COUNSEL AND THE TRIAL COURT SHOULD HAVE EITHER VACATED THE VERDICTS BASED UPON THE INEFFECTIVE ASSISTANCE OF COUNSEL OR SHOULD HAVE CONDUCTED AN N.J.R.E. 104 HEARING FOR INEFFECTIVE ASSISTANCE OF COUNSEL.
VI. THE SENTENCE IMPOSED WAS CLEARLY EXCESSIVE AND SHOULD BE VACATED.
We agree with defendant's argument in Point I that the court's failure to charge the jury on disorderly persons lewdness, N.J.S.A. 2C:14-4(a), as a lesser included offense of count two, warrants reversal of the conviction on that count. We disagree, however, with his claim that such error warrants reversal of his conviction on counts one and three. We reject the claims defendant raises in Points II, III and IV. As to Point V, we decline to address the majority of defendant's ineffective assistance of counsel claims and preserve them for post-conviction review, pursuant to State v. Preciose, 129 N.J. 451, 460 (1992). In light of our disposition of defendant's arguments respecting his conviction on the charge of attempted criminal sexual contact, we only partially address the sentencing arguments raised in Point VI.
On the evening of July 19, 2004, T.M., then age thirteen, was at home chatting with his friends online when he received an instant message (IM) from a screen name he did not recognize. At the time T.M. received this unknown IM, he was using his screen name "soccerkid1121," to which no user profile was attached. Because T.M. did not recognize the screen name, he wrote back asking the person to identify himself. Receiving no response, T.M. closed the window containing this IM and resumed instant-messaging his friends. When the unknown person sent another IM asking T.M. if he would like to "hang out," T.M. initially refused, but after a half-hour of conversing online with the person later identified as defendant, T.M. agreed to the meeting.
After making the arrangements with defendant, T.M. told his mother that he would be going to a nearby tennis club to watch a boy he knew from the school bus compete in a tennis match. Because his mother was not aware that her son and this boy were friendly, she questioned T.M. about the match and the transportation arrangements.
Shortly thereafter, as planned, defendant arrived in front of T.M.'s home and waited in his vehicle. When T.M. noticed defendant's vehicle in front of his house, he went outside to meet defendant, and his parents followed. Upon noticing that there was only one person, an older man, in the vehicle, T.M.'s parents questioned their son as to the identity of the man, at which time T.M. lied and told his parents that the man was his friend's father. When his parents asked why the friend was not in the vehicle, T.M. told them that the friend had gone to the match earlier, after which T.M. entered the front passenger seat of the vehicle and he and defendant drove away.
Sensing that something was amiss, and with their concerns heightened by the man's failure to introduce himself, T.M.'s father decided to drive to the tennis club to make sure his son was there. Upon arrival, T.M.'s father realized that no tennis match was taking place and his son was nowhere to be found. T.M.'s father immediately called T.M.'s mother and asked her to call T.M. on his cell phone to find out where he had actually been taken.
Shortly after T.M. entered defendant's vehicle, defendant asked him where the closest motel was located, and T.M. pointed to one near by. Defendant testified that he had asked about a motel because he needed a place to stay for the evening to avoid the long drive home to Atlantic City, and he wanted to "at least try to stay [in the area] and do something." The testimony of T.M. and of defendant describing what occurred once they entered the motel room was sharply divergent.
Defendant testified that he went into the motel room only to turn on the air conditioner, and that he intended to immediately bring T.M. home, but that T.M. unexpectedly followed him into the room. He maintained that they were only in the room for "seconds," and that nothing of a sexual nature happened while the two were together. Defendant insisted that he was already in his car driving T.M. back home when T.M.'s mother called him on his cell phone asking where he was.
Conversely, T.M. testified that once he and defendant entered the motel room, T.M. sat down on the bed and defendant went into the bathroom. Moments later, defendant emerged from the bathroom with an erection and naked from the waist down. When defendant sat down on the bed next to T.M. and put his arm around him, T.M. became alarmed, and asked defendant to take him home, which defendant did. T.M. described his mother's phone call as coming while he was still in the motel room with defendant. As soon as T.M. arrived home, his parents questioned him as to his whereabouts. Upon learning that T.M. had been with defendant, whom he did not previously know, his parents took him to the local police station, where they filed a report.
After local police ascertained defendant's identity and his address, they requested the Atlantic County Prosecutor's Office to conduct an interview of defendant. Ten days later, on July 29, 2004, two investigators from the Atlantic County Prosecutor's Office arrived at defendant's apartment, introduced themselves and explained that they were there to discuss an incident that had occurred on July 19, 2004, in Monmouth County.*fn1
After inviting them into his home, defendant explained to the investigators that on the day in question he thought he was meeting a "twenty or twenty-one year-old female that he had met online," but when he arrived, he became aware that the person with whom he had been chatting was actually a male who was "approximately seventeen to eighteen years of age."
Although confused by this discrepancy, he permitted the boy to enter his car, and the two drove away. Defendant explained to the investigators that his plan was to drive around and get something to eat, but before they could do so, the boy's cell phone rang. After the boy answered it and spoke to his mother, he asked defendant to take him home, and defendant explained that he immediately did so. Defendant later acknowledged to the investigators that he had gone to the motel and that the boy came into the motel room with him, but denied that anything of a sexual nature occurred.
The interview of defendant by the investigators lasted for one hour, and at no time did defendant ask them to leave. At the conclusion of the interview, they asked defendant if he would be willing to provide a tape-recorded statement, and defendant refused. He also rebuffed the investigators' request for access to his computer hard drive.
After picking a jury, but prior to opening statements, the court conducted a Miranda*fn2 hearing to determine the admissibility of defendant's statement to the investigators on July 29, 2004. The judge found that defendant was not in custody when the statement was made, and thus the failure to administer Miranda warnings did not violate defendant's Fifth Amendment right to remain silent. The judge further found that because defendant refused to submit to an audiotaped interview and refused the investigators' request for access to his computer, he clearly understood that he also had the right to refuse to answer their oral questions. She concluded that based upon the totality of the circumstances, "this was not a coerced interrogation by the police," and that it was instead "a statement voluntarily given." In reaching her conclusions, the judge relied on defendant's age, which she described as "older," and his experience in being arrested and questioned on a prior unrelated occasion. After ruling that defendant's statement was voluntary, the judge permitted the State to use it during its case in chief.
During the charge conference, defendant asked the court to refrain from charging the jury on disorderly persons lewdness, N.J.S.A. 2C:14-4(a), as a lesser included offense of attempted criminal sexual contact, explaining that giving such a charge to the jury would be confusing. The State did not object, and ultimately the court agreed not to charge it.
The jury found defendant guilty on all three counts. In a written opinion, the court denied defendant's post-trial motion for a judgment of acquittal and/or a new trial, finding that the evidence was sufficient to support a conviction; that defendant's status as a parolee did not constitute a compulsion that made his statement to detectives on July 29, 2004, involuntary; that defendant had not received ineffective assistance of counsel; and that the State had not committed prosecutorial misconduct during its opening statement and closing argument.
In Point I of his brief, defendant argues that the trial court's failure to charge lewdness, a disorderly persons offense, N.J.S.A. 2C:14-4(a), as a lesser included offense of attempted criminal sexual contact under count two of the indictment, constitutes reversible error. We agree.
The State concedes that defendant's conviction for attempted criminal sexual contact should be reversed due to the court's failure to charge the offense of lewdness. Whenever a rational jury could acquit a defendant of the indicted charge, and find the defendant guilty of a lesser included offense, the court is obliged to instruct the jury on that lesser included offense even if the defendant asks the court to refrain from doing so. State v. Jenkins, 178 N.J. 347, 361 (2004). Here, the jury could reasonably have found that defendant did not attempt to engage in criminal sexual contact, and was therefore not guilty of that crime, but that he did expose himself knowing that T.M. would see him and become alarmed, and was therefore guilty of lewdness. Therefore, the failure to charge lewdness was error requiring reversal of the conviction on count two.
Defendant, in addition to arguing that his conviction on count two should be reversed, also maintains that the failure to charge lewdness tainted his conviction on the other two counts, thereby warranting a reversal of those convictions as well. In particular, he maintains that the conviction for luring under count one cannot be sustained because a conviction for luring requires the State to prove beyond a reasonable doubt that a defendant used electronic or other means to lure or entice a child into a motor vehicle or structure with the purpose of committing a "criminal offense" against such child. N.J.S.A. 2C:13-6.
Defendant argues that had the jury been given the option of considering the disorderly persons offense of lewdness as a lesser included offense under count two, it might have found him guilty only of lewdness, which would not have satisfied the "criminal offense" predicate the luring charge requires. Only an indictable offense can serve as the required predicate "criminal offense" to support a conviction on a charge of luring; a disorderly persons conviction is an insufficient predicate. State v. Olivera, 344 N.J. Super. 583, 589-90 (App. Div. 2001).
The State argues, and we agree, that had the jury convicted defendant only of lewdness, and of nothing else, then the luring conviction itself could not be sustained. Defendant's argument that the luring conviction must be reversed because a properly-instructed jury might have convicted him only of lewdness, and not of attempted criminal sexual contact, ignores the jury's guilty verdict on count three, endangering the welfare of a child, N.J.S.A. 2C:24-4(a).
During her charge to the jury, the judge explained that in order for defendant to be found guilty of luring under count one, the State was required to prove beyond a reasonable doubt, that defendant sought to entice or coax T.M. to the motel room for the purpose of committing either the offense of endangering the welfare of a child or attempted criminal sexual contact. Although we agree with defendant that his conviction on the charge of attempted criminal sexual contact cannot be sustained, nothing that he has presented establishes that the conviction on count three, endangering the welfare of a child, should be disturbed. Under these circumstances, the conviction on count three can properly serve as the predicate conviction for the charge of luring under count one.
Defendant argues that it is impossible to determine whether the jury utilized the invalid attempted criminal sexual contact verdict or instead the endangering the welfare of a child verdict as the basis for its guilty verdict on count one, and therefore the possibility that the jury chose to use the former should cause us to void his conviction for luring. That argument lacks merit. It does not matter that both counts were presented, so long as at least one of them was a valid predicate, and the conviction on the endangering count satisfies that requirement. For those reasons, although we agree with defendant's argument that his conviction on count two must be reversed because of the court's failure to charge lewdness, we reject his argument that such failure requires a new trial on the other two counts.
In Point II of his brief, defendant argues that the verdicts were against the weight of the evidence, and that the trial court therefore erred when it denied his post-trial motion for a new trial and/or a judgment of acquittal. We disagree.
When a trial judge is presented with a defendant's motion for a new trial, such motion is to be granted only "if required in the interest of justice." R. 3:20-1. The verdict of the jury should not be set aside as against the weight of the evidence "unless, having given due regard to the opportunity of the jury to pass upon the credibility of the witnesses, it clearly and convincingly appears that there was a manifest denial of justice under the law." Ibid.
Our review of a trial judge's denial of a defendant's motion for a new trial is limited. We are obliged to affirm such denial unless it clearly appears that there was a "'miscarriage of justice under the law.'" State v. Perez, 177 N.J. 540, 555 (2003) (quoting R. 2:10-1). When we review the trial court's denial of such motion, we are obliged to view the evidence in a manner that gives the State the benefit of all the undisputed testimony, as well as the benefit of all favorable inferences that a reasonable jury could draw from the disputed testimony. State v. Kluber, 130 N.J. Super. 336, 341-42 (App. Div. 1974), certif. denied, 67 N.J. 72 (1975).
Viewing the evidence in the light most favorable to the State, as required by Kluber, we conclude that a reasonable jury could have found, beyond a reasonable doubt, that defendant initiated the online contact with T.M., that T.M. was under the age of eighteen at the time, and that defendant deliberately drove T.M. to a motel room for the purpose of engaging in conduct that would impair or debauch T.M.'s morals, in violation of N.J.S.A. 2C:24-4(a). We have no difficulty concluding that when an adult male disrobes from the waist down and emerges from a bathroom with an erection that he has engaged in conduct that would undermine a child's morals. As long as that intention was formed prior to the arrival at the motel, the State has satisfied its burden of proving not only the endangering charge, but also the luring charge. Because the State is entitled to the benefit of all favorable inferences that a reasonable jury could draw, we have no difficulty concluding, as did the trial judge, that a reasonable jury could have found that defendant formed that intention long before the two arrived at the motel room.
Accordingly, defendant's argument that the trial judge erred when she denied his motion for a new trial and/or a judgment of acquittal lacks merit.
In Point III of his brief, defendant argues that the trial judge committed reversible error of law when she declined to bar the State from presenting evidence of the statement he gave to the investigators from the Atlantic County Prosecutor's Office on July 29, 2004. In particular, defendant argues that because he was subject to community supervision for life, pursuant to N.J.S.A. 2C:43-6.4, by reason of a prior conviction for aggravated criminal sexual contact, N.J.S.A. 2C:14-3(a), he believed that if he had refused to answer the investigators' questions, he would have been arrested. In her written opinion, the trial judge did not directly address this claim, but found instead that defendant understood he did not have to answer the investigators' questions, was not pressured or threatened and was not in custody. She held that because defendant was not in custody, law enforcement's failure to give him Miranda warnings did not violate his Fifth Amendment right against self-incrimination. We agree with the trial judge's conclusion that in light of these facts, and in light of defendant's refusal to provide a taped statement or access to his computer hard drive, under the totality of the circumstances, the statements he made to investigators on July 29, 2004, were voluntary, and were properly admitted in evidence. See State v. Dixon, 125 N.J. 223, 242 (1991).
Defendant's argument that being subject to community supervision for life made it impossible for him to refuse to answer the investigators' questions also lacks merit. Defendant relies on the United States Supreme Court's opinion in Minnesota v. Murphy, 465 U.S. 420, 104 S.Ct. 1136, 79 L.Ed. 2d 409 (1984), for the proposition that he "was compelled by his status as being under parole supervision for life to cooperate with and speak to the police officers about criminal allegations, or risk the penalty that he was violating his parole." Such argument misreads the Supreme Court's opinion. In Murphy, the Court simply held that a probationer may exercise his fifth amendment right to remain silent, but if the State threatens him with revocation of parole after the exercise of such privilege, then under those circumstances, the defendant's answers would be deemed compelled, and would be inadmissible. Id. at 436-38, 104 S.Ct. at 1147-48, 70 L.Ed. 2d at 425-26. Neither the holding of Murphy, nor its rationale, support defendant's position under the facts existing here. Defendant was never told that his parole could be revoked if he refused to answer questions, and in light of the absence of any such threat, his statements to the investigators on July 29, 2004, cannot be deemed coerced or involuntary.
In Point IV of his brief, defendant argues that various comments made by the prosecutor in opening and closing statements, and in cross-examination of him, constitute prosecutorial misconduct warranting reversal of the conviction. We disagree.
We begin by analyzing defendant's claim of prosecutorial misconduct and note that the rules governing conduct by a trial prosecutor are clear. "'Prosecuting attorneys, within reasonable limit[s], are afforded considerable leeway in making opening statements and summations.'" State v. DiFrisco, 137 N.J. 434, 474 (1994) (quoting State v. Williams, 113 N.J. 393, 447 (1988)). A prosecutor is entitled to great latitude in summation so long as he or she stays within the evidence and the legitimate inferences to be drawn therefrom. State v. Mayberry, 52 N.J. 413, 437 (1968), cert. denied, 393 U.S. 1043, 89 S.Ct. 673, 21 L.Ed. 2d 593. (1969).
The prosecutor's statements in his opening that this case represents "a parent's worse nightmare" and that he would be "really ticked off at the very least . . . should [his] son do something like this" pale in comparison to the prosecutor's argument in State v. Hawk, 327 N.J. Super. 276 (App. Div. 2000). There, we reversed a conviction after the prosecutor told the jury that he "wanted [them] to hold . . . Douglas Hawk accountable for his actions" and that a verdict of guilty would "send the community . . . [a] message . . . that this community will not tolerate" the criminal conduct alleged against the defendant. Id. at 282.
We also agree with the State that the prosecutor's description of the case as representing a parent's worst nightmare was intended, and was likely understood by the jury, as a frame of reference and a description of what they were likely to hear. We do not view this comment as either inflammatory or egregious. State v. Josephs, 174 N.J. 44, 124 (2002).
Defendant also urges us to find prosecutorial misconduct in the prosecutor's comment during his opening that T.M. would describe defendant's effort to have T.M. touch defendant's penis, which was consistent with T.M.'s testimony before the grand jury. At trial, T.M. did not testify to any such attempt, instead describing defendant's partial nudity as he sat down on the bed next to him, but not mentioning any attempt by defendant to persuade T.M. to touch his penis. The record is devoid of any evidence that the prosecutor knew at the time he opened to the jury that T.M. would retreat from the testimony he gave before the grand jury. Accordingly, the opening statement cannot be considered prosecutorial misconduct. Moreover, the judge properly instructed the jury that comments by the attorneys in their openings were not evidence.
Nor do we view the prosecutor's comments in his opening and closing statements that "in doing justice, you will find the defendant guilty" to be, as defendant argues, a "call to arms" constituting prosecutorial misconduct, thereby depriving him of his right to a fair trial. We view the prosecutor's comments in much the same way as the Court did in State v. Knight, 63 N.J. 187, 193 (1973), when it reviewed a prosecutor's comments in summation. There, the prosecutor argued that if the jurors had not been convinced of the defendant's guilt, they would not have "met the responsibility" thrust upon them. Ibid. The Court, after observing that it did "not approve of such comments," nonetheless concluded that such comments had not denied defendant a fair trial. Ibid. The Court's reasoning is applicable here:
However, on several other occasions in the summation the prosecutor reminded the jury that the crux of the case was the credibility of the witnesses. More importantly, the trial court fully and accurately instructed the jury as to its role in reaching a verdict solely on the basis of the evidence, and we are confident that the prosecutor's remark did no harm. [Ibid.]
At another point in his summation, the prosecutor in Knight referred to the "curse" of heroin and the "serious threat" that it presented to society. Ibid. Evaluating those comments, the Court held that "[i]n the context of the summation as a whole, we cannot say that the prosecutor's comments were so inflammatory as to deny defendant a fair trial. These comments were only a small portion of a summation which was largely devoted to a fair review of the evidence. Ibid.
Here, too, the call to "do justice" represented but a "small portion" of a lengthy summation that "was largely devoted to a fair review of the evidence." Under these circumstances, although we do not approve of the prosecutor's "do justice" comments, "we are confident that the prosecutor's remark did no harm." Ibid. Viewed from that prospective, we reject defendant's arguments that the prosecutor's "do justice" remarks constituted a "call to arms" that deprived him of his right to a fair trial.
In Point V of his brief, defendant draws our attention to various acts and omissions by his trial counsel that he claims constitute ineffective assistance of counsel, which he argues were improperly rejected by the trial judge when she denied his motion for a new trial. Generally speaking, such claims are best preserved for post-conviction relief so that the trial court can conduct a hearing and consider matters outside the trial record. Preciose, supra, 129 N.J. at 460.
Our own review of the record does, however, enable us to dispose of some of defendant's claims of ineffective assistance of counsel. State v. Allah, 170 N.J. 269, 285 (2002). We reject defendant's argument that defense counsel's failure to object to the prosecutor's comments during his opening and closing statements constituted ineffective assistance of counsel. First, such comments were not egregious or inflammatory, and although a failure to object to such comments can lead a reviewing court to conclude that the comments were not deemed prejudicial at the time they were made, State v. Frost, 158 N.J. 76, 83-84 (1999), here we have not relied upon defense counsel's failure to object as part of our rejection of defendant's prosecutorial misconduct arguments.
Defendant also argues that his counsel was ineffective when he requested that the judge not charge the jury on lewdness. If defense counsel erred by doing so, our reversal of the conviction on count two addresses and resolves any error counsel may have made.
Defendant also urges us to find that his counsel was ineffective for failing to properly argue the law during the Miranda hearing. On appeal, defendant has retained new counsel who has argued the same points that defendant contends should have been raised by trial counsel before the Law Division. We have considered those arguments and have rejected them. Accordingly, we cannot find that prior counsel's failure to have submitted a brief to the trial judge addressing these precedents would have made any difference to the outcome, and accordingly prior counsel's performance during the Miranda hearing cannot be deemed ineffective assistance of counsel. State v. Fritz, 105 N.J. 42, 58 (1987).
Defendant makes other claims regarding the failure of prior counsel to undertake investigation of certain facts or call particular witnesses. Those contentions are best left to post-conviction relief proceedings. Preciose, supra, 129 N.J. at 460.
In light of our reversal of defendant's conviction on count two, we need not address the sentence imposed by the judge on that count. As to the other counts, we note simply that the trial judge imposed on count one a sentence of seven-years imprisonment, subject to the mandatory three-year period of parole ineligibility that is required by N.J.S.A. 2C:13-6. A sentence of seven years in the middle of the second degree range is hardly excessive, in light of defendant's prior conviction for aggravated criminal sexual contact in 2001. Under those circumstances, we decline to disturb it. State v. Roth, 95 N.J. 334, 365-66 (1984). The concurrent four-year term of imprisonment for the charge of endangering the welfare of a child is similarly unremarkable.
The convictions on counts one and three are affirmed. The conviction on count two is reversed and remanded for a new trial.