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State v. Tilelli


March 31, 2008


On appeal from Superior Court of New Jersey, Law Division, Camden County, Indictment No. 05-05-2195.

Per curiam.


Argued October 24, 2007

Before Judges Cuff, Lihotz and Simonelli.

A jury convicted defendant Michael Tilelli of third degree possession of a controlled dangerous substance (heroin), contrary to N.J.S.A. 2C:35-10a(1) (count one); second degree eluding, contrary to N.J.S.A. 2C:29-2b (count two); second degree aggravated assault while fleeing or attempting to elude a police officer, contrary to N.J.S.A. 2C:12-1b(6) (count three); second degree aggravated assault, contrary to N.J.S.A. 2C:12-1b(1) (count four); third degree aggravated assault on a police officer, contrary to N.J.S.A. 2C:12-1b(5) (count five); fourth degree hindering apprehension or prosecution, contrary to N.J.S.A. 2C:29-3b(1) (count six); and fourth degree tampering with or fabricating physical evidence, contrary to N.J.S.A. 2C:28-6(1) (count seven). The jury acquitted defendant of third degree resisting arrest/physical force, but convicted him of the lesser-included offense of fourth degree resisting arrest, contrary to N.J.S.A. 2C:29-2a (count eight). As to count two, the jury found that defendant's flight to attempt to elude a police officer created a risk of death or injury to any person.

Judge Baxter merged count three with counts two and four, and count five with count four, and imposed the following terms of imprisonment: three years on count one; seven years on count two; seven years on count four with an eighty-five percent period of parole ineligibility pursuant to the No Early Release Act (NERA)*fn1 and three years of parole supervision; one year on count six; one year on count seven; and one year on count eight. The sentences on counts two, four, six, seven and eight ran concurrently to one another, but consecutively to count one. Defendant's aggregate sentence is ten years, 5.95*fn2 years of which defendant is parole ineligible under NERA. The judge also imposed the appropriate fines and penalties. Defendant had also been charged with various traffic offenses. The judge found him guilty of all charges and suspended his driving privileges for one year.

Judge Baxter denied defendant's motion for a new trial or for post-verdict juror interrogation. On this appeal, defendant raises the following arguments:







A. The Defense of Duress

B. Second-degree Eluding Charge

C. Limiting Instructions on Other Crimes Evidence



A. Cross-examination of the defendant.

B. The use of Expert Testimony.



We reject these arguments and affirm.


We summarize the evidence presented at trial. On February 11, 2005, at approximately 9:00 p.m., the High Intensity Drug Trafficking Area (HIDTA) Task Force established an undercover surveillance operation at Seventh and York Streets in Camden, a well-known violent drug activity area. Included in the operation were Camden Police Department Detective Joseph Rivera, Officer Daniel Pleskonko, Officer Edward Pineiro, and Camden County Prosecutor's Office Investigators Peter Longo and Thomas Grieco. Rivera and Longo conducted surveillance from a vehicle located on York Street, facing Seventh Street, and Grieco, Pleskonko and Pineiro conducted surveillance from a vehicle located at Seventh and State Streets. Each of the officers wore either a tactical bulletproof vest marked "POLICE," or a sweatshirt bearing the words, "POLICE" and "HIDTA Task Force," over a bulletproof vest.

Rivera observed a transaction between a woman, who had exited a vehicle on York Street, and a man in a tan jacket. Based on his training and experience, Rivera concluded this was a narcotics transaction consistent with the types of drug transactions that occur in this area. After observing several similar transactions, Rivera saw a car, later identified as defendant's car, proceed down York Street toward Seventh Street. A man in an Army jacket, who served as a lookout, waved to the car, and the man in the tan jacket approached the passenger side and began talking to defendant through the window. After a brief conversation, the man in the tan jacket got inside the car and he and defendant continued to talk. The man in the Army jacket stood on the corner.

Rivera then saw the two men in the car hand items back and forth, looking around nervously. Rivera concluded this was consistent with narcotics activity. Once the drug transaction was completed, Rivera, Longo, and a backup unit moved in to arrest the individuals.

Rivera positioned his car within three car lengths beyond defendant's car to avoid being hit if defendant decided to flee. Grieco positioned his car at an angle at the corner of Seventh and York Streets. As the officers arrived, the man in the Army jacket yelled, "Vice," and started walking away. Pineiro exited Grieco's car and, after a brief struggle, apprehended that individual.

Rivera, Longo, and Pleskonko approached defendant's car with their guns drawn and flashlights shining, screaming, "[P]olice, get your hands up . . . turn the car off[.]" Instead of complying with the officers' commands, defendant revved his engine, put his car into gear and fled. Defendant swerved around Pleskonko and struck Grieco, propelling him onto the hood and windshield of the car. Grieco rolled off the hood, landed on his hands and knees, and lay injured in the street. Rivera radioed for an ambulance and back-up assistance to pursue defendant.

After driving a few blocks, defendant pulled over, let the drug dealer out of the car, and continued fleeing. While pursuing defendant, Rivera and Pleskonko saw him speed through a residential area and run several stop signs. Pleskonko also saw defendant throw several bags out of the driver's side window. After defendant's arrest, Pleskonko recovered six of the bags, which contained heroin and cocaine.

Camden Police Officer Luis Sanchez joined the chase in a marked police car with its overhead lights on. Sanchez approached defendant's car from the opposite direction, and veered his patrol car into defendant's lane of traffic, forcing defendant to stop. Sanchez exited his vehicle with his gun drawn. Defendant lunged his car forward, forcing Sanchez to jump onto the hood of his patrol car. Pleskonko arrived and blocked defendant's car. Defendant then jumped out of his car, and ran about ten feet before Pleskonko and Sanchez tackled and handcuffed him after a brief struggle. The officers placed defendant into Sanchez's patrol car.

An ambulance took Grieco to Cooper Medical Center, where he was treated for injuries to his hands, wrists, and knees. Grieco's knee injuries were severe and eventually required surgery. As a result of his injuries, Grieco could not immediately return to his field of police work, and his physician gave him a fifty percent chance of ever being able to do so.

Defendant testified at trial that he went to Camden to purchase heroin, had been to the area about five to ten times to purchase drugs, and used heroin the day of the incident. He also admitted he was a drug addict, consuming eight to ten bags of heroin a day. Defendant also testified that because he was focused on the drug deal, he never saw the officers surround his car with flashlights and weapons drawn, or heard them shout to him. He claimed he fled in reaction to the drug dealer telling him to "Go, go go, get the 'F' out of here[,]" and because he was scared for his life.


We first address juror issues, which arose during and after trial. We review Judge Baxter's resolution of these issues under the abuse of discretion standard. State v. R.D., 169 N.J. 551, 559 (2001).

During trial, a juror, who later became the jury foreperson, inadvertently entered an elevator with defendant and some of his witnesses. Nothing of substance happened, but because the juror was concerned about the appearance of impropriety, he reported the encounter to the judge. The judge immediately notified counsel, interrogated the juror in their presence, determined there was no prejudice, and permitted the juror to continue. Defendant contends the judge erred by not asking the juror if he had said anything to his fellow jurors about the incident, and instructed him not to do so. We disagree.

Where it appears that outside influences may have impacted jurors, "the trial judge must take action to assure that the jurors have not become prejudiced as a result of facts which 'could have a tendency to influence the jury in arriving at its verdict in a manner inconsistent with the legal proofs and the court's charge.'" State v. Bisaccia, 319 N.J. Super. 1, 12 (App. Div. 1999) (quoting State v. Scherzer, 301 N.J. Super. 363, 486 (App. Div.), certif. denied, 151 N.J. 466 (1997)). The determination is "'not whether the irregular matter actually influenced the result but whether it had the capacity of doing so.'" Ibid. "[W]here . . . there is the possibility of actual juror taint or exposure to extraneous influences (including jury misconduct and 'comments made to jurors by outside sources'), the judge must voir dire that juror and, in appropriate circumstances, the remaining jurors." Id. at 13 (quoting Scherzer, supra,, 301 N.J. Super. at 486-91). In Scherzer, we summarized the trial judge's obligation as follows:

The thrust of the New Jersey and federal cases on mid-trial allegations of jury misconduct is that the trial judge must make a probing inquiry into the possible prejudice caused by any jury irregularity, relying on his or her own objective evaluation of the potential for prejudice rather than on the jurors' subjective evaluation of their own impartiality.

Although the trial judge has discretion in the way to investigate allegations of jury misconduct, an adequate inquiry on the record is necessary for the purposes of appellate review. [Scherzer, supra, 301 N.J. Super. at 487-88 (Citations omitted).]

Judge Baxter made an adequate inquiry on the record as to the possible prejudice, and properly determined there was none. Also, the judge was not required to instruct the juror to refrain from discussing the incident with his fellow jurors because she had previously instructed all of the jurors as follows:

If anyone connected with this case or any other person approaches you or attempts to influence you in any way, do not discuss it with the other jurors, but immediately please tell one of the sheriff's officers who will in turn notify me of it right away.

It is presumed the juror followed this instruction. State v. Brown, 180 N.J. 572, 583-84 (2004); State v. Manley, 54 N.J. 259, 270 (1969). Based upon our review of the record, we are satisfied no abuse of discretion occurred regarding this juror issue.

After trial, an alternate juror left a telephone message at the judge's chambers stating that "a deliberating juror commented to her on the way out of the building that she really did not want to return a verdict of guilty but she felt pressured to go along with everyone else." The judge instructed her team leader to return the call. The judge also received an anonymous letter from a purported juror claiming he or she "felt pressured by my fellow jurors and by the police officers in the court room as well as in the hall during our breaks and lunch, and I do not believe I am the only one who feels this way." The judge also received a letter from a deliberating juror stating she "had serious doubts on the second charge which questioned whether [defendant] knew he was running from the police[,]" she "was not convinced that [Grieco] would not recover fully and that his current condition was not temporary[,]" she "assumed, incorrectly, that . . . [defendant] would be given a light sentence[,]" "was shocked to learn that [defendant] will face a 4 years-plus mandatory sentence[,]" and, if she had known about the sentence, she "would have erred on the side of his innocence."

Judge Baxter notified counsel of the content of the telephone message, and provided copies of the letters. Defendant then filed a motion pursuant to Rule 1:16-1 to compel post-verdict interrogation of jurors and for a new trial, which the judge denied. The judge found no evidence of extraneous or illegal influences on the jury or that a juror reached a verdict he or she would not otherwise have reached. Relying on State v. Athorn, 46 N.J. 247 (1966), cert. denied, 384 U.S. 962, 86 S.Ct. 1589, 16 L.Ed. 2d 674 (1966) and State v. LaRocca, 81 N.J. Super. 40 (App. Div. 1963), the judge concluded that defendant failed to establish good cause for post-trial jury interrogation.

Our Supreme Court has made clear that "'[c]alling back jurors for interrogation after they have been discharged is an extraordinary procedure which should be invoked only upon a strong showing that a litigant may have been harmed by jury misconduct.'" State v. Harris, 181 N.J. 391, 503 (2004) (quoting Athorn, supra, 46 N.J. at 250), cert. denied, 545 U.S. 1145, 125 S.Ct. 2973, 162 L.Ed. 2d 898 (2005). Our review of the record satisfies us that defendant has not carried his burden. We agree with Judge Baxter that none of the post-trial communications show any juror misconduct, improper internal or external influence, consideration of inappropriate or extraneous evidence, or improper jury deliberations. Thus, we find no abuse of discretion and discern no reason to disturb the judge's ruling on the post-trial juror issues.


We next address defendant's contention that the prosecutor's summation remarks deprived him of a fair trial. Defendant raises this issue for the first time on appeal. Therefore, we must apply the plain error standard. R. 2:10-2; State v. Macon, 57 N.J. 325, 333 (1971).

Here, the prosecutor said:

One man committed these offenses, ladies and gentlemen. It's up to you collectively as the finders of the facts in this case to render verdicts on each of these eight counts which do justice.

The State's position is that each and every count of the elements of that count have been proven beyond a reasonable doubt and that the defendant is guilty of each count charged.

Defendant argues that these remarks are equivalent to the improper statement, "[l]et the battle for justice be won[,]" made in State v. Rodriquez, 365 N.J. Super. 38, 52 (App. Div. 2003), certif. denied, 180 N.J. 150 (2004). We disagree.

In evaluating the prosecutor's comments in this case, we must examine his role. "[P]rosecutors occupy a unique position in the criminal justice system and their primary duty is not to obtain convictions, but to see that justice is done." State v. Zola, 112 N.J. 384, 426 (1988), cert. denied, 489 U.S. 1022, 109 S.Ct. 1146, 103 L.Ed. 2d 205 (1989); State v. Ramseur, 106 N.J. 123, 320 (1987). A prosecutor is "duty bound to confine his comments" during summation "to facts revealed during the trial and reasonable inferences to be drawn from that evidence." State v. Ackner, 265 N.J. Super. 351, 357 (App. Div.) (citing State v. Marks, 201 N.J. Super. 514, 534 (App. Div. 1985), certif. denied, 102 N.J. 393 (1986)), certif. denied, 134 N.J. 485 (1993). Certainly, not every departure from this requirement mandates reversal. State v. Johnson, 216 N.J. Super. 588, 614 (App. Div.), certif. denied, 107 N.J. 647 (1987).

Prosecutorial misconduct is not a basis for reversal unless the conduct "'was so egregious that it deprived defendant of a fair trial.'" State v. DiFrisco, 137 N.J. 434, 474 (1994) (quoting State v. Pennington, 119 N.J. 547, 565 (1990)), cert. denied, 516 U.S. 1129, 116 S.Ct. 949, 133 L.Ed. 2d 873 (1996); Ramseur, supra, 106 N.J. at 322. Accordingly, the prosecutor's statements must constitute a clear infraction and "'substantially prejudice the defendant's fundamental right to have the jury fairly evaluate the merits of his defense'" in order to warrant a reversal. State v. Roach, 146 N.J. 208, 219 (quoting State v. Bucanis, 26 N.J. 45, 56, cert. denied, 357 U.S. 910, 78 S.Ct. 1157, 2 L.Ed. 2d 1160 (1958)), cert. denied, 519 U.S. 1021, 117 S.Ct. 540, 136 L.Ed. 2d 424 (1996).

In considering whether prosecutorial misconduct is prejudicial and denied defendant a fair trial, we consider "whether defense counsel made a timely and proper objection, whether the remark was withdrawn promptly, and whether the [judge] ordered the remarks stricken from the record and instructed the jury to disregard them." State v. Marshall, 123 N.J. 1, 153 (1991) (quoting Ramseur, supra, 106 N.J. at 322-23), cert. denied, 507 U.S. 929, 113 S.Ct. 1306, 122 L.Ed. 2d 694 (1993); State v. Bogen, 13 N.J. 137, 141-42, cert. denied sub nom. Lieberman v. State, 346 U.S. 825, 74 S.Ct. 44, 98 L.Ed. 350 (1953).

Here, defense counsel did not object to the prosecutor's remarks. Also, in viewing the summation as a whole, we are convinced it is nothing more than a straightforward presentation of the evidence in the light most favorable to the State. Read in context, the one remark to "do justice" was not an improper call to arms.


Defendant next contends for the first time that certain errors in the jury charge deprived him of a fair trial. We consider this contention under the following standard:

Our court rules provide that a party waives the right to challenge on appeal any portion of the jury charge if he or she fails to object to it. R. 1:7-2. We may reverse on the basis of unchallenged error if we find error that was "clearly capable of producing an unjust result," R. 2:10-2, commonly known as the "plain error" standard. "Plain error in the context of a jury charge is 'legal impropriety in the charge prejudicially affecting the substantial rights of the defendant sufficiently grievous to justify notice by the reviewing court and to convince the court that of itself the error possessed a clear capacity to bring about an unjust result.'" [State v. Torres, 183 N.J. 554, 564 (2005)]. In applying that standard, we must read the charge as a whole. [State v. Townsend, 186 N.J. 473, 498-99 (2006).] Regarding the duress charge, defendant concedes the judge properly instructed the jury in compliance with the Model Jury Charge and explained that this instruction only applied to counts two, three, four and five. However, defendant contends the judge should have repeated the instruction after each count to which it applied, and placed a special interrogatory on the verdict sheet stating the State's burden to disprove the duress defense as to those counts.

Defendant cites no authority to support his contention. Also, he did not object to the duress charge at trial, request that the judge repeat the instruction after each count, or request a special interrogatory on the verdict sheet. After our careful review of the charge as a whole, we are satisfied it properly informed the jury of the elements of the duress defense and the State's burden to prove that defense as to each count to which it applied. Thus, there was no prejudice to defendant or unjust result. We are also satisfied Judge Baxter committed no error in failing to repeat the instruction or include a special interrogatory on the verdict sheet because she was not required to do so.

Regarding the eluding charge, defendant raises four arguments: (1) the judge failed to instruct the jury on, and the Model Jury Charge fails to include, the culpability requirement of a knowing mens rea for the seventh element of the charge, which elevates the crime to second degree; (2) the judge failed to instruct the jury on the elements of the traffic offenses of speeding and failing to stop at an intersection controlled by stop signs necessary to infer that his attempt to elude the police "created a risk of death or injury to any person," N.J.S.A. 2C:29-2b, thus elevating the offense to a second degree crime; (3) the judge's charge, like the Model Jury Charge, did not adequately explain how the jury was to proceed if they did not find the statutory permissive inference; and (4) the judge failed to define purposeful conduct when instructing the jury on an attempt to elude under count two.

As to the first argument, our Supreme Court recently held that "there is no mens rea element to that portion of the eluding statute, N.J.S.A. 2C:29-2b, that enhances a defendant's penal exposure from a third- to a second-degree offense if, while knowingly fleeing or attempting to elude any law enforcement officer, a defendant 'creates a risk of death or injury to any person.'" State v. Thomas, 187 N.J. 119, 123-24 (2006) (quoting N.J.S.A. 2C:29-2b).

As to the second argument, the Model Jury Charge for eluding an officer required the judge to "list motor vehicle violations . . . and list their elements[.]" The judge instructed as follows:

Specifically, it is alleged that the defendant's conduct involved a violation of the motor vehicle laws of this state and it is alleged that the defendant exceeded the posted speed limit of 25 miles per hour, and further it is alleged that he ignored stop signs by driving through intersections controlled by a stop sign without coming to a full stop.

This instruction properly listed the elements of speeding, N.J.S.A. 39:4-98b(1), and failure to stop at a stop sign, N.J.S.A. 39:4-144.

As to the third argument, the judge instructed the jury as follows:

[I]f you find that the State has failed to prove the seventh element beyond a reasonable doubt, but has proven the first six elements beyond a reasonable doubt, then you would find the defendant not guilty of eluding while creating a risk of death or injury to any person, but you would find him guilty of eluding.

This instruction clearly explained how the jury was to proceed if they did not find the statutory permissive inference.

As to the fourth argument, we adhere to our ruling that the crime of eluding is not "an inchoate offense involving an attempt to commit another offense." State v. Mendez, 345 N.J. Super. 498, 506 (App. Div. 2001), aff'd on other grounds, 175 N.J. 201 (2002).

Finally, defendant contends the judge should have sua sponte given a limiting instruction on the N.J.R.E. 404(b) other crimes evidence (that defendant had used heroin earlier the day of the incident and was a habitual drug addict using eight to ten bags of heroin a day). He argues that without such an instruction, the jury could have utilized this evidence to form the opinion that he was a bad person with a propensity to commit crimes.

Defendant's contention lacks merit. Defendant did not object to evidence of his drug use and addiction or request a limiting instruction. In fact, he admitted his drug use and addiction and presented it as part of his duress defense; he stipulated to the presence of illegal narcotics in his urine tests; he agreed to the admissibility of a recorded statement where he admitted his drug addiction; defense counsel referred to defendant's drug use in his opening statement and summation; and he testified about previous drug purchases at Seventh and York Streets. In the context of this case, defendant's drug use and addiction was clearly part of the res gestae of the crime. State v. Long, 173 N.J. 138, 155 (2002). Thus, the absence of a limiting instruction regarding defendant's drug use and addiction was not error.


Defendant also contends for the first time that the prosecutor improperly cross-examined him by asking him to characterize the testimony of certain police officers as untruthful or that they were lying; and by using the testimony of Rivera and Pleskonko as expert testimony.

Based upon our review of the record, we are satisfied that, in light of the overwhelming evidence of defendant's guilt, the prosecutor's brief questioning of defendant's characterization of the officers' testimony as untruthful did not rise to the level of an error clearly capable of producing an unjust result. State v. Green, 318 N.J. Super. 361, 377-78 (App. Div. 1999), aff'd, 163 N.J. 140 (2000).

We are also satisfied Rivera and Pleskonko did not present expert testimony as lay witnesses. The officers testified about their qualifications, their experience investigating street-level narcotics operations in general, and their experience in conducting numerous narcotic investigations in the area in question. Rivera testified that based upon his experience, his observations of the behavior of defendant and the drug dealer in defendant's car were consistent with someone who is looking around to see if police are present. Pleskonko testified that, in his experience, drug dealers sometimes enter a buyer's vehicle. Police officers are permitted "to testify as lay witnesses, based on their personal observations and their long experience in areas where expert testimony might otherwise be deemed necessary." State v. LaBrutto, 114 N.J. 187, 198 (1989). Thus, the officers' testimony was not improper expert testimony.


We now address defendant's sentence. Defendant contends Judge Baxter improperly found aggravating factor two, N.J.S.A. 2C:44-1a(2), (the gravity and seriousness of harm inflicted on the victim), three, N.J.S.A. 2C:44-1a(3), (the risk that the defendant will commit another offense), and eight, N.J.S.A. 2C:44-1a(8), (the defendant committed the offense against a police officer acting in the performance of his duties); and failed to properly consider mitigating factor three, N.J.S.A. 2C:44-1b(3), (the defendant acted under a strong provocation), four, N.J.S.A. 2C:44-1b(4), (there were substantial grounds tending to excuse or justify the defendant's conduct, though failing to establish a defense), and eight, N.J.S.A. 2C:44-1b(8), (the defendant's conduct was the result of circumstances unlikely to recur).

Based upon our review of the sentencing record, we are satisfied the judge properly weighed the aggravating and mitigating factors. We agree that because defendant inflicted two serious bodily injuries on Grieco, the additional injury to Grieco's knee warrants a finding of aggravating factor two, N.J.S.A. 2C:44-1a(2). State v. Mara, 253 N.J. Super. 204, 208 (App. Div. 1992). We also agree that although defendant had no prior convictions, aggravating factor three, N.J.S.A. 2C:44-1a(3), applies because he was an illegal drug user for five years, using eight to ten bags of heroin a day, thus committing a crime each day. He also committed additional crimes when he did not stop his car after the drug dealer got out. We further agree that aggravating factor eight, N.J.S.A. 2C:44-1a(8), applies because the convictions for causing bodily injury while eluding and causing serious bodily injury do not require that the victim be a law enforcement officer.

We emphasize that Judge Baxter gave aggravating factor two, N.J.S.A. 2C:44-1a(2), "moderate weight," and aggravating factor three, N.J.S.A. 2C:44-1a(3), "great weight." However, the judge also found aggravating factor nine, N.J.S.A. 2C:44-1a(9), (the need to deter the defendant and others from violating the law), which defendant does not dispute, and gave it extraordinarily heavy weight, the greatest weight that can be given to any aggravating factor, and that is not only is there a need to deter [defendant] and others from using illegal drugs, but also there's an extremely great need to deter people from eluding police.

We also find no fault with the judge's refusal to find mitigating factors three, four and eight, N.J.S.A. 2C:44-1b(3), (4) and (8), because there is no support for them in the record. Finally, we reject defendant's contentions that, taking into consideration the real-time consequences of the NERA component of the sentence, Judge Baxter improperly imposed a consecutive three-year term on count one, and the imposition of a base term of seven years on counts two and four is excessive. We are satisfied the judge properly identified and balanced the aggravating and mitigating factors supported by the credible evidence in the record, State v. Natale, 184 N.J. 458, 489 (2005), and imposed a consecutive term on count one in accordance with the requirements of State v. Yarbough, 100 N.J. 627 (1985), cert. denied, 475 U.S. 1014, 106 S.Ct. 1193, 89 L.Ed. 2d 308 (1986). The judge properly imposed a seven-year term on count four, the only count to which NERA applied. A person who has been convicted of a crime of the second degree may be sentenced to a term of imprisonment of between five and ten years. N.J.S.A. 2C:43-6a(2).


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