January 24, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
JAMES DALSKOV, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Bergen County, 04-08-1660.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued December 17, 2007
Before Judges Lintner, Sabatino and Alvarez.
Defendant, James Dalskov, was convicted of second-degree burglary, N.J.S.A. 2C:18-2 (Count One), second-degree attempted robbery, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:15-1 (Count Two), second-degree attempted kidnapping, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:13-1b (Count Three), second-degree conspiracy to commit robbery, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:15-1 (Count Five), and second-degree conspiracy to commit kidnapping, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:13-1 (Count Six). He was acquitted of third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4d (Count Four).
The trial judge merged the fifth count conviction with the second count conviction and the sixth count conviction with the third count conviction and imposed concurrent ten-year terms on the first, second, and third count convictions together with a No Early Release Act, N.J.S.A. 2C:43-7.2, parole disqualifier. Defendant appeals and we affirm.
On March 5, 2004, the Special Investigation Unit of the Bergen County Prosecutor's Office received "information that identified one John Piccone as a possible victim" of a crime. The Special Investigation Unit and the Palisades Park Police Department set up a joint surveillance of Piccone's home located at 261 Glen Avenue in Palisades Park. Officers located Piccone, then seventy-three years old, at his solid waste business, SJG Waste Management in North Bergen, and accompanied him to his home, where he lived alone.
At approximately 7:00 p.m., Lieutenant Erik Baum and Sergeant Tim Condon of the Prosecutor's Office, Detective Sergeant Anthony Muccio of the Palisades Park Police Department, Detective Sam Giovia of the County Sheriff's Department, and Officer Fred Pulice of the Englewood Police Department began observing Piccone's house from three cars in various positions on the streets around Piccone's Glen Avenue home.
Prosecutor's detectives, Sergeant Robert Anzolatti, James McMorrow, and Christopher Barzelatto, and Palisades Park Police Department Lieutenant Anthony Servis took up surveillance positions inside Piccone's home. Piccone was instructed, if anyone knocked on his front door, to ask who it was, say he would be there in a minute, and then to secrete himself in the kitchen.
At approximately 8:00 p.m., Baum, through a heavy fog, observed a red Ford Expedition slowly circle the Glen Avenue block two times, park, with the lights out, directly across from Piccone's home where it remained for twenty minutes before leaving the area. Baum followed the Expedition as it left, recorded the license plate number, and then returned to his surveillance post. The Expedition was registered to Mazzkov Trucking, Inc., in Secaucus, New Jersey, a company owned by defendant's wife, Donna Dalskov. The Division of Motor Vehicles listed defendant's address, 76 LaSalle Avenue, Hasbrouck Heights, New Jersey, as an alternate address for the vehicle.
At approximately 10:00 p.m., a four-door Pontiac Bonneville with three occupants turned onto Glen Avenue and circled the block several times at a low rate of speed. Baum alerted the surveillance teams via radio of the Bonneville's presence, however, shortly thereafter the exterior surveillance teams lost visual contact with the vehicle.
Inside Piccone's home, Servis, McMorrow, Anzolatti and Barzelatto took up positions near the front door. The front screen door was opened and a male voice said "PSE&G." Piccone responded, as instructed, "Just one minute, I'll be right there," and then retreated to the kitchen. The interior surveillance team radioed the exterior teams to inform them the suspects were at the front door. As Anzolatti unlocked the deadbolt, the doorknob was turned from the outside, the door forcibly opened inward, and two men began pushing their way into the house. Barzelatto and Anzolatti yelled, "police, get on the ground," pushed the first intruder back outside, while the second intruder turned and began to run down the street. After Barzelatto tackled the first intruder on the front porch, a violent struggle ensued and eventually the intruder was subdued, handcuffed, arrested, and identified as Robert Schneider.
Meanwhile, outside, Baum observed a white male in dark clothing running from the residence and being pursued by Anzolatti. Baum took up pursuit and, in front of 269 Glen Avenue, he and Anzolatti tackled and arrested the suspect, later identified as Richard Greenwald.*fn1
A roll of duct tape, which Greenwald discarded as he attempted to evade apprehension, was retrieved and a knife, cell phone, leather gloves, and a police scanner set to monitor the Palisades Park Police radio channel, were recovered on Greenwald's person. Flexi-cuffs, a black hat, and a black ski mask were found on the front porch of Piccone's home. Greenwald and Schneider were transported to the Bergen County Prosecutor's Office in Paramus for questioning.
Following Greenwald's and Schneider's arrests, Baum located the Pontiac Bonneville near 273 Glen Avenue and began unsuccessfully conducting a street-by-street search of the area in an attempt to locate the Bonneville's third occupant. The Bonneville was registered to a Lynn Distel, Greenwald's girlfriend, in Elmwood Park. Distel was located and consented to a search of the Bonneville. Two flexi-cuffs and a Quality Lube receipt in the name of "Richard Green" were recovered from the Bonneville.
Defendant's wife, who is also Greenwald's stepsister, was located and brought to the Prosecutor's Office sometime prior to defendant's apprehension.*fn2 Anzolatti asked Donna if she knew where defendant was, however, she did not know his location.
Around 11:50 p.m., Barzelatto and Anzolatti began questioning Greenwald at the Prosecutor's Office. At approximately 1:15 a.m., during the interview, Greenwald's cell phone rang; Anzolatti instructed Greenwald to answer the call and to relay certain information to the caller. Greenwald identified the caller as "Jimmy," who Anzolatti understood to be defendant. Greenwald answered, followed Anzolatti's instructions on what to say to the caller, and handed the phone to Anzolatti. Anzolatti said "Hello, Mr. Dalskov," and the caller responded "hello." Anzolatti told defendant he should surrender and gave him the option of coming to the Prosecutor's Office himself, or having a squad car pick him up at his location. Defendant agreed to surrender and requested that a squad car pick him up at his location, a Sunoco station off Route 46 in Palisades Park.
A marked squad car was dispatched. When defendant saw the squad car, he began waving his arms to flag the officer down, and said to the officer, "I'm the guy you're looking for." Defendant was arrested at the gas station and brought to the Prosecutor's office.
After being advised of, and waiving his Miranda*fn3 rights, defendant was questioned by McMorrow and Muccio. Defendant told McMorrow that he knew Piccone because he had driven a truck for him in the past and that he believed Piccone had "millions of dollars." Defendant said that he, Greenwald, and Schneider met on March 5 at Schneider's house to plan the home invasion of Piccone's residence. Defendant indicated that he and Greenwald first discussed robbing Piccone approximately two weeks prior to March 5. Defendant said that it was Greenwald's idea to bring Schneider into the fold to execute the robbery.
Defendant told McMorrow that he supplied the flexi-cuffs and duct tape for the robbery. He explained to McMorrow that Schneider was assigned to enter Piccone's home, bind Piccone and cover his eyes using duct tape, while defendant and Greenwald raided a safe in Piccone's home. Defendant stated that he picked up Greenwald in a red Ford Expedition. They then met up with Schneider and drove by Piccone's residence to check the block and "see if it was kosher." While they sat in front of Piccone's house, defendant told Greenwald they should not use the Expedition during the robbery, so they decided to use Greenwald's girlfriend's car. They then switched cars and returned to Piccone's home. He explained that they parked the car and, as Greenwald and Schneider approached the front door, he stood behind a tree nearby. After observing what happened and hearing someone yelling "police," he fled the area on foot southward towards Route 46.*fn4
According to McMorrow, defendant's wife was not discussed during the interview of defendant. McMorrow testified that defendant did not see his wife at the Prosecutor's office at any time on March 6.
Piccone testified that defendant owned a trucking business and, in the 1990s, they had a business relationship connected to the carting industry, at which time defendant would regularly go to Piccone's business approximately three times a week. Piccone testified that defendant employed a "Rich Green" as a truck driver and that Piccone met Green in that capacity in the 1990s.
Testifying on his own behalf, defendant denied participating in or agreeing to help rob or kidnap Piccone, or invade Piccone's residence with Greenwald and Schneider. He acknowledged his business relationship with Piccone during the 1990s and that he knew Piccone was rumored to have a large quantity of money, but denied any social relationship with Piccone or knowing where Piccone lived.
Defendant testified that he first met Schneider on March 5, 2004. According to defendant, he picked up Greenwald with Donna's Expedition to go to a go-go bar in Wayne. Greenwald asked him to pick up Schneider. After picking up Schneider, Greenwald asked defendant if they could drive to a home in Palisades Park to "see a man . . . to pick up some money." Defendant took them to the house on Glen Avenue. He denied knowing it was Piccone's house. They arrived, parked in front of the house, the Expedition was turned off at Greenwald's request,*fn5 and they "sat there for a few minutes talking." Greenwald then asked defendant to take him to Distel's house because Greenwald had to drop keys off with Lynn. After arriving at Distel's house, they decided to use her car because the rear-end of defendant's car was acting up, and defendant did not want to drive after drinking later in the evening.
Greenwald drove the Bonneville and at some point decided he wanted to go back to the house in Palisades Park to see if the guy was home. When they arrived in Palisades Park around 10:00 p.m., Greenwald circled the block and defendant questioned why he was driving in that manner. Greenwald responded, "[d]on't worry about it." Defendant then asked Greenwald to take him home to Hasbrouck Heights because he had an "uneasy feeling" about Greenwald's behavior. Greenwald refused. When Greenwald stopped the car on East Central Avenue, defendant got out and began walking to find a payphone. Greenwald continued driving and defendant saw him turn back onto Glen Avenue.
Defendant walked down Glen Avenue and eventually made his way to a gas station on Route 46, which had a payphone. Defendant denied seeing anyone or anything related to a home invasion as he walked down Glen Avenue after being dropped off by Greenwald. At the gas station, defendant, using the attendant's cell phone, eventually got in touch with his son, who told defendant that Donna had been taken away by the police.
Defendant decided to call Greenwald to demand that Greenwald give him a ride home but, when Greenwald answered, he told defendant that he had been arrested by the police. According to defendant, Anzolatti then got on the line and told him that it was in his best interest to turn himself in, that the police had Donna in custody, and that she would go to jail if he did not turn himself in. Defendant did not know what Anzolatti was talking about, but agreed to come to the Prosecutor's office if Anzolatti sent a squad car to pick him up.
When defendant arrived, he saw his wife exiting the Prosecutor's office but was not allowed to talk to her. Defendant was placed in a room and tightly handcuffed to a chair. McMorrow and Servis were in the room with him. He protested that he did not know why he was arrested. McMorrow said, "[y]ou know why . . . [because] you're involved with them two," and then officers brought in Greenwald and Schneider, who looked like they had been beaten up. Defendant claimed that McMorrow told him that he would be beaten like Greenwald and Schneider, that his son would be taken by DYFS, and his wife would be taken to jail, unless he cooperated with police by doing what they told him to do. Because of the threat to the safety of his family, defendant agreed to give police a statement and to implicate himself in the home invasion plot. According to defendant, McMorrow practiced the interview questions and told him how to answer until defendant was comfortable with giving the proper answers; a stenographer was then brought in to record McMorrow interviewing defendant. During the interview, McMorrow would instruct the stenographer to stop recording, McMorrow would then provide defendant with an answer McMorrow had written on a note pad, and the stenographer would then record defendant's answer. Defendant asserted he signed the statement because McMorrow told him to do so.
On appeal, defendant raises the following contentions:
THE TRIAL COURT ERRED IN ALLOWING THE STATE TO PRESENT HEARSAY TESTIMONY ABOUT A CONFIDENTIAL INFORMANT'S TIP.
A. MR. DALSKOV'S CONVICTION SHOULD BE REVERSED BECAUSE OF PROSECUTORIAL MISCONDUCT IN REVEALING THE TIP IN HIS OPENING STATEMENT.
B. THE TRIAL COURT ERRED IN PERMITTING THE STATE TO ELICIT TESTIMONY THAT A CONFIDENTIAL INFORMANT HAD IDENTIFIED JOHN PICCONE AS A POTENTIAL "VICTIM."
C. REPEATEDLY ELICITING HEARSAY TESTIMONY ABOUT THE TIP FROM THREE (3) SEPARATE POLICE OFFICERS WAS A DUE PROCESS VIOLATION.
D. MR. DALKSOV'S CONVICTION SHOULD BE REVERSED BECAUSE OF PROSECUTORIAL MISCONDUCT DURING SUMMATION.
TESTIMONY ABOUT THE PHONE CONVERSATION BETWEEN DETECTIVE ANZOLATTI AND MR. DALSKOV MADE ON CO-DEFENDANT GREENWALD'S CELL PHONE WHILE CO-DEFENDANT GREENWALD WAS BEING INTERROGATED VIOLATED BRUTON V. UNITED STATES.
THE COURT ERRED IN FINDING AGGRAVATING FACTOR NUMBER TWELVE (12) IN IMPOSING ITS SENTENCE.
Prior to trial, defendant moved for disclosure of a confidential informant (CI) who tipped the police to the possibility of the home invasion of an elderly resident of Palisades Park who owned a scrap metal business. At oral argument on defendant's motion, the judge recited the following information regarding the CI.
[O]n March 4, 2004 an Investigator Sweeney . . . of the New Jersey Office of Attorney General contacted Officer . . . McMorrow, Bergen County Prosecutor's Office, about a planned home invasion in Palisades Park. A confidential informant, CI, had told Sweeney that members of the Chingalings . . . an outlaw motorcycle gang from the South Bronx, were planning a home invasion in Palisades Park. The CI described the victim as an elderly man who owned a scrap metal business and drove a late model Mercedes.
McMorrow and Detective Anthony Muccio of the Palisades Park Police Department interviewed James Rotundo . . . of Palisades Park, but discovered that he did not match the details provided by the CI. However, Mr. Rotundo provided the name of an acquaintance, a Mr. John Piccone . . . . Mr. Piccone did operate a waste disposal business, lived in Palisades Park . . . and drove a Mercedes.
The police then determined that Mr. Piccone was the likely victim and arranged for an increased police presence near his home. . . .
Investigator Sweeney received information from the CI that the -- that was corroborated, that Mr. Piccone was indeed the intended target and that the home invasion would take place the coming weekend, but could not give a date or time or even identities or members of the individuals involved.
The court denied the motion for disclosure of the CI on June 9, 2005, following oral argument. Following the court's decision not to reveal the identity of the confidential informant, the defense raised the issue of how the prosecution would present the CI's information during trial and noted that it considered the then-recent opinion, State v. Branch, 182 N.J. 338 (2005), to be controlling. The court consequently entered an order on March 15, 2006, allowing the State "to elicit testimony at trial that the police initiated an investigation based upon information received that identified John [Piccone] as a possible victim."*fn6
Following the judge's directions, the State elicited testimony from Baum, Anzolatti, and McMorrow about background information that the investigation was based upon information received that identified Piccone as a possible victim, which in turn resulted in the inside and outside surveillance of Piccone's home. Defendant argues that the testimony, together with the prosecutor's reference in both his opening and closing statements that the investigation was started based upon information received identifying Piccone as a possible victim, violated his right to confrontation and amounted to impermissible hearsay testimony. He also argues that McMorrow's testimony, which was not challenged at trial, that he instructed Piccone to respond to someone at the door by saying, "wait a minute" and then retreat to the kitchen represented prejudicial hearsay offered to prove motive, intent, and guilt.
At one point during Anzolatti's testimony, the following colloquy took place:
Q: Now specifically directing your attention to March 5, 2004 did the special investigations squad receive information that identified one John Piccone as a possible victim?
Q: As a result of the receipt of that information, did an investigation begin?
A: Yes, sir.
Q: Was the first event in that investigation a tactical briefing?
A: Yes, once Mr. Piccone was identified as the potential victim of this crime --MR. NEARY: I'm sorry, Judge --THE COURT: All right. The last remarks by the witness are hereby stricken. You are to disregard those statements please.
Q: You received the information.
A: Yes, sir.
In his jury charge, the judge provided the following limiting instruction:
[I]f I give or gave a limiting instruction as to how to use certain evidence, that evidence must be considered by you for that purpose only. You cannot use it for any other purpose.
Now in this regard, you may recall that you heard some testimony that law enforcement responded to [Piccone's] home because they received information that Mr. [Piccone] was a possible victim. Now, I instruct you that this evidence was admitted and can be considered by you solely to explain why the police began this investigation and for no other reason.
Hearsay is defined as "a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted."
N.J.R.E. 801(c). Because hearsay is deemed "untrustworthy and unreliable," State v. White, 158 N.J. 230, 238 (1999), it is "not admissible except as provided by [the Rules of Evidence] or by other law." N.J.R.E. 802. However, "if evidence is not offered for the truth of the matter asserted, the evidence is not hearsay and no exception to the hearsay rule is necessary to introduce that evidence at trial." State v. Long, 173 N.J. 138, 152 (2002).
Defendant asserts that, by permitting the description of information received that Piccone was "a possible victim," the judge allowed impermissible hearsay evidence to be heard by the jury. The statement that Piccone was a possible victim was not hearsay because it was not offered for the truth of the matter asserted, but instead as background information to establish why the officers set up a surveillance at Piccone's home. N.J.R.E. 801. The judge gave the appropriate cautionary instruction to the jury in his charge, advising that the information "was admitted and can be considered by you solely to explain why the police began this investigation and for no other reason." See
N.J.R.E. 105; State v. Brown, 170 N.J. 138, 181-82 n.1 (2001). There is no reason to believe that the jury was unwilling or unable to follow the curative instruction as given. State v. Manley, 54 N.J. 259, 270 (1969). Even if we concluded that the statement was hearsay, which it was not, it would be harmless because it did not inculpate defendant, and the undisputed evidence established that Schneider and Greenwald attempted to break into Piccone house.
Similarly, McMorrow's testimony concerning the instructions given to Piccone did not implicate defendant. When a statement is offered other than for the truthfulness of its context, to show that the statement was in fact made and the listener took certain action as a result, the statement is not considered hearsay. Spragg v. Shore Care, 293 N.J. Super. 33, 56-57 (App. Div. 1996). Contrary to defendant's contention, McMorrow's directions to Piccone were properly elicited and did not amount to error, much less plain error.
In State v. Bankston, 63 N.J. 263 (1973), the Court acknowledged the well-settled rule that the hearsay rule is not violated when a police officer explains the reasons he approached a suspect or went to the scene of a crime by stating that he did so "upon information received." Id. at 268; see also Branch, supra, 182 N.J. at 351. Generally, such testimony is permissible to show that an officer was not acting arbitrarily so long as it does not "imply to the jury that he possesses superior knowledge, outside the record, that incriminates the defendant." Branch, supra, 182 N.J. at 351 (citing Bankston, supra, 63 N.J. at 271; State v. Irving, 114 N.J. 427, 445-46 (1989)). It is only when the officer "conveys, directly or by inference, information from a non-testifying declarant to incriminate the defendant in the crime charged" that the hearsay rule and Confrontation Clause are violated.
Id. at 350 (citing Bankston, supra, 63 N.J. at 268-69). Thus, in Branch, the Court held that the detective's testimony that he placed the defendant's photograph in a photo array based upon information he received concerning the suspect was improper because it implied that the detective "had information from an out-of-court source, known only to him, implicating [the] defendant in the [crime]." Id. at 353 (emphasis added). "When the logical implication to be drawn from the testimony leads the jury to believe that a non-testifying witness has given police evidence of the accused's guilt, the testimony should be disallowed as hearsay." Bankston, supra, 63 N.J. at 271.
The testimony permitted by the Court regarding Piccone as a possible victim did not implicate defendant. The limited testimony permitted by the court and given by Baum, Anzolatti, and McMorrow neither directly nor indirectly identified any suspects nor did it provide a specific time when the crime would take place. Moreover, the challenged comments made by the prosecutor in both his opening statement and his closing remarks were within the confines of the judge's pretrial ruling and thus properly based upon the evidence both anticipated and established at trial.
Defendant next asserts that the testimony regarding the cell phone conversation between Anzolatti and defendant violated defendant's Sixth Amendment right of confrontation, similarly guaranteed by Article I, paragraph 10 of our Constitution. Defendant argues that Anzolatti's testimony that Greenwald indicated that "Jimmy" was calling, Anzolatti's acknowledgement that he understood Jimmy to mean the caller was defendant, Anzolatti's statement to the caller when he was handed the phone, "Hello, Mr. Dalskov," defendant's response, "hello back," and Anzolatti's testimony that he gave defendant options regarding being picked up or coming to headquarters, violated the proscription against the admission of a co-defendant's inculpatory hearsay statements. Defendant maintains that Anzolatti's reference to the telephone conversation with defendant was tantamount to the presentation of impermissibly implied inculpatory statements from co-defendant Greenwald. The State counters that Anzolatti's testimony did not introduce a confession by Greenwald nor implicate defendant, who himself corroborated Anzolatti's description of the telephone conversation, including the fact that he called Greenwald from the gas station.
It is well settled that admission of hearsay statements of a co-defendant inculpating a defendant is prohibited as violation of a defendant's Sixth Amendment right to confrontation by cross-examination. See, e.g., Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed. 2d 476 (1968); State v. Young, 46 N.J. 152 (1965); State v. Laboy, 270 N.J. Super. 296, 303 (App. Div. 1994). Similarly, the Confrontation Clause is violated were the testimony of a detective, though not hearsay, creates an irresistible inference that a non-testifying co-defendant implicated a defendant even though the co-defendant's words are not used. State v. Roach, 146 N.J. 208, 224-25 (1996). In Roach, the testimony from a detective characterized the defendant as a suspect based upon the information he received from co-defendants. Id. at 225. After criticizing the testimony as an inferential violation of the confrontation clause, the Court went on to determine whether the detective's testimony was harmless error. Id. at 226. Determining that the defendant's confession provided other evidence of guilt, the Court found that defendant's right to a fair trial was not prejudiced by introduction of the detective's testimony. Ibid.
Like McMorrow's description of the instructions given to Piccone, Anzolatti's testimony concerning the phone conversation described a course of conduct rather than revealing a substantive hearsay declaration. It was defendant who initiated the telephone call and identified himself as "Jimmy." Anzolatti's conversation with defendant provided the necessary explanation as to why defendant voluntarily surrendered to the police. More importantly, defendant himself testified that he initiated the telephone call and confirmed the conversation described by Anzolatti. Thus, even if it could be said that Anzolatti's statement that he believed "Jimmy" to be defendant could be inferentially connected with information obtained from Greenwald, it could not possibly have prejudiced defendant's right to a fair trial.*fn7 Furthermore, in both his confession and his later recantation, defendant confirmed that he was with Greenwald during the evening of the offense. Simply stated, similar to the circumstances in Roach, any error was harmless.
Finally, defendant argues that the sentence was excessive, that the judge mistakenly found aggravating factor N.J.S.A. 2C:44-1a(12) (the defendant committed the offense against a person who he knew or should have known was 60 years of age or older or disabled) because Piccone was not harmed.*fn8 Defendant confuses aggravating factor N.J.S.A. 2C:44-1a(2) (the gravity and seriousness of the harm inflicted on the victim) with aggravating factor -1a(12). Defendant was convicted of second-degree attempted robbery and attempted kidnapping. The intended victim was seventy-three years old. The judge correctly applied the applicable aggravating factors. Beyond that, we are satisfied that that the sentence imposed is not manifestly excessive or unduly punitive and does not constitute an abuse of discretion. State v. O'Donnell, 117 N.J. 210, 215-16 (1989); State v. Ghertler, 114 N.J. 383, 393 (1989); State v. Roth, 95 N.J. 334, 363-65 (1984).