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State v. Gay

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


June 25, 2008

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
LAWRENCE K. GAY, DEFENDANT-APPELLANT.
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
KENNETH GAY, DEFENDANT-APPELLANT.

On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Ind. No. 04-04-0727.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted December 18, 2007

Before Judges Skillman and LeWinn.

The appeals of these co-defendants have been calendared back-to-back for our consideration. We now consolidate the appeals.

Defendants were indicted on twelve counts of first-degree robbery, in violation of N.J.S.A. 2C:15-1 (counts one through twelve; second-degree burglary, in violation of N.J.S.A. 2C:18-2 (count thirteen); second-degree possession of a weapon for an unlawful purpose, in violation of N.J.S.A. 2C:39-4(a) (count fourteen); third-degree unlawful possession of a weapon, in violation of N.J.S.A. 2C:39-5(b) (count fifteen); and second-degree possession of a weapon by a convicted person, in violation of N.J.S.A. 2C:39-7(b) (count sixteen). Following a three-day trial, defendants were convicted on all counts.

Both defendants were sentenced as follows: count one*fn1, an extended term of life, 85% without parole; counts two through thirteen, consecutive terms of twenty years, with ten-year parole ineligibility periods; and count sixteen, a concurrent ten-year term, with a four-year parole ineligibility period. Defendants' aggregate custodial sentences are life plus 220 years subject to an 85% period of parole ineligibility.

On appeal, defendant Lawrence Gay raises numerous trial and sentencing errors. Defendant Kenneth Gay raises one claim of trial error and an excessive sentence claim. Because we conclude that the cumulative effect of several trial errors deprived defendants of a fair trial, we reverse both defendants' convictions and remand for a new trial.

I.

A review of the trial evidence is essential to our discussion of the issues raised.

For more than twenty years, William Hine had hosted a Monday-night poker game in the converted garage of his Brick Township home, located in an out-of-the-way wooded area. These games usually ran from seven or eight o'clock in the evening until the early morning hours of the following day.

On the evening of February 25, 2002, Hine hosted one of his games. Players were required to put in a minimum of $200 to participate. Twelve people attended that night, and Hine held the money from all players, totaling $2400. Sometime between 12:15 and 12:30 a.m., on February 26, 2002, two men wearing Halloween-type masks and armed with guns raised the garage door, entered and announced a robbery. The men wore dark clothing and gloves; one mask depicted a bald man with a moustache, and the other a large smiling face.

When Hine approached one of the men and tried to remove his mask, the man shoved him onto a couch. The men instructed everyone, except a female player, to lie on the floor; anyone who did not comply was forcibly lowered to the floor. The men searched each player, taking cash, jewelry and cell phones, along with the $2400 held by Hine. They then bound each player's hands behind his/her back with duct tape and fled. The entire incident lasted between twenty and thirty minutes.

Several players had freed their hands by the time the two men left. William George, one of the first to break free, ran to his car and followed the men until he lost them. Another player, Frank Lettieri, called 911.

Sergeant Keith Reinhard of the Brick Township police department arrived and interviewed some of the players. George told Reinhard the men drove a dark Datsun with a license plate containing the letters "SL" or "ST." Hine and George told Reinhard that they heard one man call the other "Paul." No fingerprint evidence was found at the scene.

On March 21, 2002, Reinhard interviewed Donald Tranberg about the poker game robbery. Tranberg is a convicted criminal known to the Brick Township police; he had previously participated in Hine's poker games. Tranberg denied any knowledge of the robbery. The police investigation subsequently became inactive.

In October 2002, Freehold Police Officer Mark Denham stopped a car in which Kenneth Gay was a passenger. As a result of the stop, Denham searched both defendants' rooms at the Village Inn where they were staying at the time. This search was in connection with a narcotics investigation unrelated to the poker game robberies. In Kenneth Gay's room, Denham found a rubber Stone Cold Steve Austin mask that he took as evidence. In Lawrence Gay's room, Denham found a silver gun, a bulletproof vest and another rubber mask; the officer took the vest and gun, but not the mask, as evidence.

Unaware of the Brick Township robbery case, the Freehold police subsequently destroyed that gun and vest during a routine cleaning of their evidence room.*fn2 As a result of the Freehold narcotics investigation, defendants were convicted of conspiracy to possess cocaine with intent to distribute and sentenced to ten-year jail terms on September 23, 2003.*fn3

On cross-examination, Denham was asked why he did not inventory the mask along with the vest and gun found in Lawrence Gay's room. Denham responded:

If it is in the context of what we are investigating at that time, we would seize it and log it as evidence.

At that time we were not investigating whatever took place here in Ocean County. We were investigating our own investigation, which was narcotics.

Defense counsel immediately objected, and the trial judge told the jury to "disregard" Denham's "last remark."

Reinhard testified that, in November 2003, more than oneand-a-half years after the poker game robberies, Tranberg contacted him because Tranberg had heard rumors that he was about to be charged with those robberies and he wanted to clear his name. Tranberg told Reinhard that he had been present at the robbery and gave the officer the "specifics" of the events on that night.

During Reinhard's testimony, the prosecutor twice questioned him as to why Tranberg was not charged in connection with the robberies. Reinhard first responded: "We pretty much believed his story that he was forced to go there." He later stated: "We believed that he was telling us the truth about what happened. And that he was not involved in the planning or the actual execution of this incident."

Tranberg testified that he told Reinhard that defendants had committed the robberies. He said that word of Hine's high-stakes poker game had spread around the Freehold Racetrack which was frequented by Tranberg, defendants and some of the players in Hine's poker games. Lawrence Gay told Tranberg he and his brother planned to rob the poker game and they wanted Tranberg to help them. Because defendants threatened harm to Tranberg and his mother, he agreed to help.

A few nights prior to February 25, 2002, upon payment of $100 from defendants, Tranberg rode with them to show them the location of Hine's house. On the night of the robberies, Kenneth Gay rented a silver Pontiac Grand Prix, license plate ZM117R. Defendants picked up Tranberg at the racetrack in the rental car and drove to Hine's house, parking on a side road out of view of the garage. Tranberg testified that defendants were wearing all-black jumpsuits with towels around their necks. One defendant wore a Stone Cold Steve Austin mask, and the other wore an Abraham Lincoln mask. Tranberg also stated that he saw defendants carrying three guns and that Kenneth Gay had a black gun and a silver gun with a brown handle.

Tranberg testified that he had lied when initially contacted by the police in March 2002 because defendants had threatened to retaliate against him if they came under investigation for the poker game robberies. At that point, the trial judge interjected the following query: "What changed between that time when [you were] in fear of your life because they knew you were going to talk to the cops in February and March of 2002 and November 2003 when you went back to talk to the cops? Why weren't you afraid anymore?" Tranberg responded: "They were in jail."

The judge then sua sponte offered the jury the following instruction:

Ladies and gentlemen, when the Court asks questions of a witness I will advise you that it is for the sole purpose of eliciting information for your benefit. You are not to draw any inference from the fact that the Court asked any questions.

Questions asked by the Court are not to be taken as an indication of any belief or opinion on the Court's part as to how the case should be decided or the Court's opinion on the believability or the credibility of the witness. The law does not permit the Court to have an opinion one way or the other. You are the sole judges of the facts. You will make that determination.

I advise you further, ladies and gentlemen, you hear the evidence and the testimony in the case. It is the first time you've ever heard it. And while I mentioned to you yesterday that you are passive judges of the facts, I'm not quite as passive as you are. And as I hear the testimony and the questions and the answers that are posed and the evidence is presented, I try and imagine what's confusing to me. And where I find it might be confusing I try and ask questions that may be helpful to you as the judges of the facts. So I know that you are not permitted to ask questions.

But my questions are solely for the benefit of eliciting information that may be helpful to you. If you find it helpful, use it. If you find it not helpful and you say, well, that was an irrelevant question that the judge asked, then disregard it. [(Emphasis added).]

Tranberg acknowledged that he has had substantial involvement in the criminal justice system. On December 15, 2000, he received a term of five years probation on first- and second-degree drug distribution charges. In June and July of 2003, Tranberg was arrested and charged with nine counts of possession and distribution of drugs. These arrests constituted a violation of his probation and, therefore, put Tranberg at risk of serving a mandatory extended term of incarceration. In March 2005, just months prior to defendants' trial, Tranberg received a probationary term for his 2003 arrests.*fn4

II.

We first address the argument, raised by defendant Lawrence Gay, regarding Sergeant Reinhard's testimony that he "believed" Tranberg was "telling the truth." As we have long recognized, "the question of a witness's credibility has routinely been regarded as a decision reserved exclusively for the jury." State v. J.Q., 252 N.J. Super. 11, 39 (App. Div. 1991), aff'd 130 N.J. 554 (1993). In State v. Frisby, 174 N.J. 583 (2002), the Supreme Court reversed a defendant's conviction where police officers had testified that he was charged for the crime at issue but another witness was not so charged because the witness "was more credible than [the defendant] at that point." Id. at 590 (emphasis added). The Court emphasized that "the mere assessment of another witness's credibility is prohibited." Id. at 594.

The prejudicial error in Frisby was compounded by the police officer's recounting of the "out-of-court statements of non-testifying witnesses in contravention of our hearsay rules." Id. at 595. Noting that such hearsay was, in and of itself, inadmissible, the Court nonetheless stressed that the greatest prejudice stemmed from the officer's use of that evidence to bolster the witness's credibility:

Most important, the hearsay testimony was advanced by the officers as the foundation for their wholly improper credibility evaluation in favor of [the witness] and against [defendant]. . . .

[T]he police essentially gave the jury their opinion regarding the innocence of [the witness] and inferentially the guilt of [defendant]. That is not allowed. [Id. at 593-94.]

Of particular pertinence to this case is the Frisby Court's recognition that "the effect of police testimony essentially vouching for [the witness] cannot be overstated." Id. at 595. The Court accorded particular significance to the police officer's testimony in that case because credibility "was the ultimate question for the jury." Ibid.

Credibility was a critical element in this case as well. Without Tranberg's testimony the State had no evidence connecting these defendants with the poker game robberies. Reinhard's statements had the clear capacity to enhance Tranberg's credibility while simultaneously creating an inference of defendants' guilt.

III.

We turn next to defendant Lawrence Gay's contention that the trial court improperly limited his right to confront Tranberg on cross-examination. The significance of this argument is heightened by the issue we have just addressed regarding Reinhard's "endorsement" of Tranberg's credibility.

Prior to trial, defendants filed a motion seeking full disclosure of Tranberg's criminal record, including his role as a confidential informant to the police. The trial judge ruled that defendants could explore "any consideration or breaks [Tranberg] got as a result of the information he is providing, has provided and will continue to provide in the case against [defendants]." However, the court denied inquiry into any other plea negotiations and/or cooperation between Tranberg and the police authorities.

As noted, in December 2000 Tranberg had received a five-year probationary term for first- and second-degree drug distribution charges. In March 2005, Tranberg received an extension of that probationary term for new charges that arose in 2003. Tranberg testified that he received "nothing from the State or from Brick or from anyone for this testimony today." Tranberg insisted that his lenient sentence in March 2005 stemmed from "something else. It had nothing to do with the card game."

Defense counsel contended, in their motion, that Tranberg's lenient sentences were based on his role as a confidential informant to the Brick Township police. Counsel argued that Tranberg's plea agreement on his first- and second-degree drug distribution charges in 2000 called for him to receive a "flat" term of fifteen years, "and if he cooperated the sentence will be a maximum 10 years with no parole ineligibility period." Notwithstanding those plea terms, Tranberg received a five-year probationary term. Referring to the transcript of Tranberg's 2000 sentencing, defense counsel noted that "apparently there was a confidential memo" from the office of the Monmouth County Prosecutor in Tranberg's file; however, counsel had not been able to obtain a copy of that memo. Counsel stated:

So that timewise may not be relevant as far as the actual events when that happened. But it is certainly relevant to my case because, look, you got a sweetheart deal to begin with and it is getting carried over again, and on top of that you are mandatory extended term Brimage*fn5 and you are getting another year's probation.

My problem is I know about these three or four events. I don't know about all the other ones that he got advantage of. . . . .

[I]f he was arrested November 3, [2003,] I have nothing in here that shows what the charge was and what happened to it. How do I know he didn't have 10 to 15 or 20 over this year? I want to show a pattern that this guy has been committing crimes left and right and he must be such a great confidential informant . . . .

Counsel noted that a police report of November 3, 2003, refers to Tranberg as "a confidential informant . . . who had been arrested and wanted to give information referenc[ing] the robbery."

However, the judge prohibited counsel from inquiring into any other cooperation Tranberg may have offered to the police. As a result, defendants were prevented from exploring fully the degree to which Tranberg may have been influenced to provide testimony on behalf of the State at their trial.

"It is fundamental that [a] defendant has a right to explore, with a prosecution witness, evidence that the State has a 'hold' of some kind over the witness, the mere existence of which possesses the potential of prompting him to color his testimony in favor of the prosecution[.]" State v. Holmes, 290 N.J. Super. 302, 312 (App. Div. 1996).

The test of propriety of questions addressed to credibility is not necessarily whether there was an arrangement to grant the witness concessions. It is as relevant and significant for a defendant to demonstrate the state of mind of the witness based on his subjective reactions to the favorable treatment he may have received or may hope to receive in connection with his own criminal involvement. [State v. Vaccaro, 142 N.J. Super. 167, 176 (App. Div.), certif. denied, 71 N.J. 518 (1976) (emphasis added).]

The issue of a State witness's possible bias is an "essential" area "which the trial judge should have allowed defendant to develop." State v. Mazur, 158 N.J. Super. 89, 105 (App. Div.), certif. denied, 78 N.J. 399 (1978).

Where, as here, "the evidence against defendant[s] arose primarily from" the State's key witness, a trial judge commits "reversible error by precluding defendant from showing bias." Ibid. The outcome of this case depended on "who[m] the jury believed. Thus, anything which could have tipped the credibility scale had the potential to affect the outcome and, to the extent that the credibility scale was wrongly tipped, a fundamental injustice was the result." Holmes, supra, 290 N.J. Super. at 312.

The full background of Tranberg's favorable sentencing history should have been admissible as part of defendants' impeachment efforts. Given his criminal history, Tranberg may well have believed that his cooperation in testifying on behalf of the State would inure to his benefit in the future. He may also have been "react[ing] subjective[ly]" to the favorable treatment he had received both in 2000 and in 2005. Id. at 313.

Although defendants were able to cross-examine Tranberg regarding his favorable sentencings in 2000 and 2005, nonetheless, considering how crucial Tranberg's credibility was to the State's case, defendants should have been afforded greater leeway to explore fully Tranberg's motivation and expectations of "favorable treatment . . . in connection with his own criminal involvement." Vaccaro, supra, 142 N.J. Super. at 176. As we have noted, it "is not necessary to show that there existed a prior arrangement between the prosecutor and the witness whereby the latter was to receive immunity from criminal prosecution, before his 'expectations for favorable treatment' may be shown as evidence of bias." Mazur, supra, 158 N.J. Super. at 103-04. Defendants should have had the right to explore the full scope of Tranberg's cooperation agreement with the State as a means of impeachment. State v. Spano, 69 N.J. 231 (1976).

IV.

Both defendants argue that they were prejudiced by: (1) Officer Denham's testimony regarding the "narcotics investigation"; and (2) Tranberg's testimony that defendants were "in jail." Defense counsel objected to Denham's testimony; there was no objection to Tranberg's statement in response to the trial judge's question. Nor was there any objection to the Judge's sua sponte statement to the jury immediately following that testimony. Immediately prior to sentencing, on July 22, 2005, defendants moved for a new trial on the basis of these two incidents. In denying the motion, the trial judge stated that Tranberg's comment was "transitory in nature. It was not significant." The judge did not address Denham's testimony regarding a "narcotics investigation."

We conclude that these two statements, taken together, likely raised an inference in the minds of the jurors that defendants were "criminals." Through Denham, the jury was informed that defendants were the subjects of a narcotics investigation. Through Tranberg, the jury learned that defendants were "in jail" in November 2003.

We find particularly troubling the trial judge's spontaneous "instruction" to the jury, following Denham's reference to the "narcotics investigation." The judge twice informed the jury that his question was "for the sole purpose of eliciting information for your benefit." He also told the jury that he tried "to ask questions that might be helpful to you as the judges of the facts."

The jury could well have taken this to mean that it should consider Tranberg's comment that defendants were in jail as "helpful" in the deliberation process. The judge's final comment that the jury could find that "that was an irrelevant question that the judge asked," and could, therefore, "disregard" it cannot be considered curative.

"[A]n unwarranted comment by the judge can be as prejudicial, or more harmful, than one by [counsel]. After all, the judge is a 'neutral magistrate,' and not a mere adversary making a presentation to the jury. The jury looks to the judge for guidance and advice[.]" State v. Meneses, 219 N.J. Super. 483, 488 (App. Div. 1987), certif. denied, 110 N.J. 156 (1988); see also Espinal v. Arias, 391 N.J. Super. 49, 61 (App. Div.) ("A court's comments concerning a witness are certainly apt to have more weight with a jury than counsel's.") certif. denied, 192 N.J. 482 (2007). The potential for prejudice is enhanced where, as here, the judge told the jury his question was asked for their benefit. Hearing that message, it is unlikely that the jury would "disregard" it as "irrelevant."

Tranberg's comment itself may have been "transitory in nature" and "not significant[,]" as the trial judge ruled in denying defendant's motion for a new trial on this ground. However, the judge's spontaneous "instruction" to the jury unduly highlighted and emphasized the possible significance of that comment, and improperly conveyed to the jury that the testimony was elicited for its "benefit."

Defendants took issue with the trial judge's comment during the charge conference. The trial judge offered to instruct the jury that it could not "draw any inference" from Tranberg's statement. Defense counsel elected not to ask for such an instruction. However, we note that whatever prejudice may have emanated from Tranberg's statement had already been exacerbated by the judge's immediate and spontaneous "instruction" to the jury during trial.

The combined effect of Denham's statement regarding the "narcotics investigation" and Tranberg's statement that defendants were "in jail" had the potential to highlight in the jury's mind evidence of "other crimes" attributable to these defendants. Under N.J.R.E. 404(b), evidence of other crimes, wrongs, or acts is not admissible to prove the disposition of a person in order to show that such person acted in conformity therewith. Such evidence may be admitted for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident when such matters are relevant to a material issue in dispute.

[(Emphasis added).]

The evidence in question was irrelevant to any fact issue in the case. Therefore, such evidence was inadmissible. State v. Neal, 229 N.J. Super. 28, 36 (App. Div. 1988). There was "absolutely no need" for the jury to know of this evidence. Ibid. Therefore, even an appropriate "limiting instruction" could not have cured the prejudice to defendants, since those particular instructions govern "the proper use of such evidence . . . to prove a relevant issue in dispute[.]" State v. Blakney, 189 N.J. 88, 92 (2006).

The jury was informed that defendants were the subject of a "narcotics investigation" in October 2002 and were "in jail" in November 2003. This information had no bearing on any fact in issue at the robbery trial. Evidence of "other crimes" is particularly problematic as it "creates the strong potential for prejudice because of its natural 'tendency to demonstrate a criminal predisposition.'" Id. at 93 (quoting State v. G.S., 145 N.J. 460, 468 (1996)).

The prejudicial impact of such evidence is of particular concern in cases, such as this, in which defendants choose not to testify. In State v. Taplin, 230 N.J. Super. 95 (App. Div. 1988), the defendant was convicted after his mug shots were unnecessarily introduced into evidence. We reversed his conviction, holding that [c]learly, when a defendant does not testify, the State cannot, in the ordinary circumstance, refer to his criminal record.

If proof is nevertheless adduced which permits the jury to infer that he has a criminal record, defendant cannot but be prejudiced and, in effect, be deprived of the benefit he anticipated in deciding not to testify. [Id. at 99.]

The State contends that defendants "opened the door" to Denham's comment on cross-examination. We disagree. Counsel posed the following question to the officer: "What do you normally do when you find a piece of evidence at a scene, sir?" Denham's response that included his reference to the "narcotics investigation" was clearly non-responsive and far beyond the scope of defense counsel's question. There was no basis to assume that counsel could have anticipated such a response. In fact, defense counsel immediately objected to Denham's response, to which the judge responded: "Sustained. The jury will disregard the last remark."

As noted, Tranberg's comment was elicited by the trial judge's question. That question produced an inadmissible response to which the judge then drew inordinate attention in his "instruction" to the jury.

The importance of proper and immediate limiting instructions to a jury who has just heard inappropriate "other crimes" evidence, cannot be overstated. The Supreme Court has emphasized that, considering the significant prejudicial impact of such evidence, limiting instructions in the "strongest terms" are appropriate at the time of the testimony. State v. LaPorte, 62 N.J. 312, 318 (1973).

It is the danger that other-crimes evidence may indelibly brand the defendant as a bad person and blind the jury from careful consideration of the elements of the charged offense that requires the trial court to deliver the limiting instructions in a way that the jury can really understand. . . . "[T]he inherently prejudicial nature of such evidence casts doubt on a jury's ability to follow even the most precise limiting instruction. Recognizing this dilemma, trial courts should take pains to instruct juries carefully and comprehensively, with ample reference to the specific evidence and issues in a case . . . ." We note that the better practice is to give limiting instructions not only at the time that other-crimes evidence is presented, but also in the final jury charge. [Blakney, supra, 189 N.J. at 93 (citation omitted).]

The trial judge's comment to "disregard" Denham's "narcotics investigation" comment fell far short of that prescribed standard. Moreover, his spontaneous "instruction" to the jury following Tranberg's comment, far from telling the jury the limited, if any, relevance of such evidence, essentially invited the jury to consider and weigh that evidence if they considered it "helpful."

V.

In addition to the potential prejudice to defendants arising from each of these errors individually, we conclude that the cumulative effect of such errors clearly warrants a reversal and new trial.

The sound administration of criminal justice in our democracy requires that both the end and the means be just. The accused, no matter how abhorrent the offense charged nor how seemingly evident the guilt, is entitled to a fair trial surrounded by the substantive and procedural safeguards which have stood for centuries as bulwarks of liberty in English speaking countries. This, of course, does not mean that the incidental legal errors, which creep into the trial but do not prejudice the rights of the accused or make the proceedings unfair, may be invoked to upset an otherwise valid conviction; under these circumstances it would be grossly unjust to the State and its people to grant a new trial, and . . . this court has not hesitated to deny such relief to the defendant. Where, however, the legal errors are of such magnitude as to prejudice the defendant's rights or, in their aggregate have rendered the trial unfair, our fundamental constitutional concepts dictate the granting of a new trial before an impartial jury. . . . [T]his being so, our own views as to whether the evidence established the defendant's guilt are no longer material. [State v. Orecchio, 16 N.J. 125, 129 (1954)(emphasis added).]

We consider the cumulative impact of these errors under the "plain error" standard in Rule 2:10-2. Although defendants raised "certain objections" and requested a new trial, nonetheless other aspects of the error we have culled from the record were not specifically objected to by defendant[s], and more specific instructions to the jury or a request for cautionary instructions were not requested with absolute clarity. Thus, the issue of error is best addressed by us as one of plain error. [State v. Hogan, 297 N.J. Super. 7, 21 (App. Div.), certif. denied, 149 N.J. 142 (1997).]

We conclude that the cumulative affect of the errors we have discussed was "sufficient to raise a reasonable doubt as to whether the error[s] led the jury to a result it otherwise might not have reached." Macon, supra, 57 N.J. at 336. As our Supreme Court has recently recognized, "the predicate for relief for cumulative error must be that the probable effect of the cumulative error was to render the underlying trial unfair." State v. Wakefield, 190 N.J. 397, 538 (2007).

This was not a trial in which the State presented "overwhelming evidence of defendant[s'] guilt" to a degree that would render these errors "inconsequential and . . . not a factor in the jury verdict of guilt." LaPorte, supra, 62 N.J. at 320. Tranberg was the linchpin in the State's case. Without his testimony, the State had no substantial evidence connecting defendants to the robberies.

In this context, the combination of Reinhard's two statements vouching for Tranberg's credibility, with defendants' limited ability to cross-examine Tranberg as to his motivation for testifying, was particularly prejudicial. That prejudice, in turn, was further exacerbated by the improper introduction of "other crimes" evidence in the absence of appropriate limiting instructions.

Viewing the errors found in defendant[s'] trial through the prism of how they affected [their] ability to have the jury fairly consider [the evidence], we conclude that the cumulative impact of the errors casts doubt on the fairness of defendant[s'] trial and on the propriety of the jury verdict that was the product of that trial. [State v. Jenewicz, 193 N.J. 440, 447 (2008).]

VI.

Defendant Lawrence Gay raises two additions points:

THE TRIAL COURT ABUSED ITS DISCRETION BY FAILING TO GIVE THE JURY, SUA SPONTE, AN INSTRUCTION ON DESTROYED EVIDENCE (NOT RAISED BELOW).

THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING THE DEFENDANT'S MOTION FOR A JUDGMENT OF ACQUITTAL AT THE END OF THE STATE'S CASE ON COUNTS TWO, THREE, FIVE, SIX, EIGHT, NINE, TEN, ELEVEN, AND TWELVE.

We consider these arguments to be "without sufficient merit to warrant discussion in a written opinion[.]" R. 2:11-3(e)(2). We add only these brief comments.

The first issue is raised as plain error. Therefore, we will consider it only if "it is of such a nature as to have been clearly capable of producing an unjust result[.]" R. 2:10-2. Defendant's reliance on State v. Peterkin, 226 N.J. Super. 25 (App. Div.), certif. denied, 114 N.J. 295 (1988), is misplaced. In that case, police officers failed to preserve a photographic array used in identifying defendants and then attempted to conceal that failure by fabricating a new array. Id. at 30-35. No such willful dereliction of duty occurred in this case. Officer Denham testified the evidence in question was destroyed during a routine cleaning of the evidence room, at a time when the Freehold police were unaware of the Brick Township robbery case.

Regarding the second issue, as defendant acknowledges, and the trial judge noted, the State is entitled to the benefit of "all of the favorable inferences which reasonably could be drawn" from the evidence. State v. Reyes, 50 N.J. 454, 458-59 (1967). Defendant's motion was addressed to those victims of the poker game robbery who did not testify at trial. However, Hine, George and Lettieri, all of whom were present during the robbery, testified from personal knowledge as to what occurred with respect to all twelve victims. Viewing the State's evidence in its most favorable light, the trial judge correctly denied the motion for a judgment of acquittal.

In light of our reversal of defendants' convictions and the remand of this matter for a new trial, defendants' excessive sentence arguments are rendered moot.

Reversed and remanded for a new trial.


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