October 23, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
AKHEEN KENNEDY, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 06-10-1744-I.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 29, 2008
Before Judges Carchman and R. B. Coleman.
Following a jury trial, defendant, Akheen Kennedy, was convicted of third degree forgery, (N.J.S.A. 2C:21-1a(2)), as well as a disorderly persons offense of hindering apprehension as a lesser-included offense of fourth degree hindering apprehension, (N.J.S.A. 2C:29-3b(4)). The same jury acquitted defendant of other charged drug offenses, and the prosecutor moved to dismiss yet another charged offense-third degree displaying of a document which is falsely purported to be a driver's license, (N.J.S.A. 2C:21-2.1c). The trial judge sentenced defendant to a term of imprisonment of three years on the forgery conviction and a concurrent term of six-months imprisonment on the hindering offense together with statutory fines and penalties. The narrow issue on this appeal relates exclusively to the forgery conviction, which we now reverse. We limit our discussion of the facts to the relevant circumstances surrounding the forgery charge. On August 3, 2006, defendant, with two other co-defendants, was allegedly observed in a drug transaction. Following the observation, Detective Justin Bertone of the Lodi Police Department approached defendant, identified himself as a police officer and told defendant to exit his vehicle. Defendant did so, and when questioned as to his identity, defendant said he was Darrell Kennedy. He then produced a license bearing the same name. Defendant was placed under arrest and ultimately taken to the Lodi Police Station. While at the police station, Detective Chris Perrilli observed defendant sign a consent to search form and use the name Darrell Kennedy.
What followed next at trial was the terse testimony supporting the forgery charge:
Q: Detective, I'm now going to show you what has been marked S-18. Do you recognize this?
Q: What is it?
A: Fingerprint cards.
Q: Okay. The outer bag, the outer plastic, did you place the card in that plastic?
Q: Would you use the scissors to cut it open and take out the contents. Now, is there a date on that bag, the outer bag, to show you when you put the card in that bag and sealed it?
Q: What was that date?
A: August 8th. Tuesday, August 8th.
Q: Okay. Would you take out the interior, the contents of the bag. What is that?
Q: Or what are those?
A: Four fingerprint cards.
THE COURT: What's the exhibit number?
Q: When were those fingerprint cards generated?
A: August 3rd of 2006.
Q: Okay. Is there--excuse me. Do you know whose hand was utilized to make those fingerprint cards?
A: No, I don't.
Q: Okay. What is the name signed on those fingerprint cards?
A: Darrell Kennedy.
The entire cross-examination regarding the cards is equally as brief:
Q: Now, you didn't fill out that fingerprint card, correct?
You didn't prepare that or have anything to do with that?
Q: That's some other officer that did that?
Later, the officers learned that Darrell Kennedy was, in fact, defendant Akheen Kennedy.
Following the close of trial, defendant moved to dismiss the forgery charge asserting that the forged documents had not been admitted into evidence. The trial judge ruled:
As I started to say the fingerprint card is not in evidence but I do not find that it's necessary for the card to be in evidence. There's sufficient testimony in this case to have this matter go to the jury. I will deny that motion and the other motions under Reyes because the State has sufficient [sic.] here to have this matter go to the jury. Motions are denied.
No further testimony was adduced regarding the forgery charge, and the charge was submitted to the jury for its consideration. Defendant was convicted.
On appeal, defendant raises the following issues:
THE STATE FAILED TO ESTABLISH THAT AKHEEN KENNEDY FORGED DARRELL KENNEDY'S SIGNATURE ON THE FINGERPRINT CARDS WHERE THE CARDS WERE NEVER INTRODUCED INTO EVIDENCE, THERE WAS NO TESTIMONY THAT KENNEDY SIGNED THE CARDS, AND THERE WAS NO EVIDENCE THAT DARRELL KENNEDY WAS A FICTITIOUS PERSON OR HAD NOT AUTHORIZED AKHEEN KENNEDY TO SIGN HIS NAME. THEREFORE, THE TRIAL JUDGE ERRED IN DENYING KENNEDY'S MOTION FOR JUDGMENT OF ACQUITTAL AS TO THE FORGERY COUNT.
PERRELLI'S TESTIMONY REGARDING THE CONTENTS OF THE FINGERPRINT CARDS, WHICH WERE NOT IN EVIDENCE, VIOLATED THE PERSONAL KNOWLEDGE REQUIREMENT SET FORTH IN N.J.R.E. 602, THE PROHIBITION AGAINST HEARSAY SET FORTH N.J.R.E. 802, AND THE REQUIREMENT OF ORIGINAL WRITING SET FORTH IN N.J.R.E. 1002, AS WELL AS KENNEDY'S RIGHT TO CONFRONTATION UNDER THE STATE AND FEDERAL CONSTITUTIONS. (Partially raised below.)
We begin our analysis with a statement of basic principles that apply here. A criminal defendant is entitled to the fundamental protection that the State must prove every element of an offense beyond a reasonable doubt. In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, L.Ed. 2d 368 11970); see also State v. Ingenito, 87 N.J. 204, 214 (1981); State v. Delibero, 149 N.J. 90, 99 (19970; State v. Tarver, 272 N.J. Super. 414, 430 (App. Div. 1994). "The presumption of innocence has frequently been regarded as integrally related to the requirement that every element of a crime must be proven beyond a reasonable doubt before a conviction may obtain." Ingenito, supra, 87 N.J. at 214. If at the close of the State's case, defendant believes the State did not meet their burden, defendant may make a motion for judgment of acquittal.
At the close of the State's case or after the evidence of all parties has been closed, the court shall, on defendant's motion or its own initiative, order the entry of a judgment of acquittal of one or more offenses charged in the indictment or accusation if the evidence is insufficient to warrant a conviction. A defendant may offer evidence after denial of a motion for judgment of acquittal made at the close of the State's case without having reserved the right.
State v. Reyes, 50 N.J. 454 (1967) establishes the standard that a trial judge must apply when considering such a motion. Reyes, supra, 50 N.J. at 458-59. The trial judge shall determine "whether the evidence at that point is sufficient to warrant a conviction of the charge involved." Id. at 458. Further, "[i]n deciding whether the trial court was correct in denying the motion [for acquittal], we of course, take into account only the evidence on the State's case, unaided by what defendant later developed at trial." State v. Lemken, 136 N.J. Super. 310, 314 (App. Div. 1974)(citing the applicable standard from State v. Allen, 53 N.J. 250 (1969)); Reyes, supra, 50 N.J. 454). A judge must determine:
whether, viewing the State's evidence in its entirety, be that evidence direct or circumstantial, and giving the State the benefit of all its favorable testimony as well as all of the favorable inferences which reasonably could be drawn therefrom, a reasonable jury could find guilt of the charge beyond a reasonable doubt.
Reyes, supra, 50 N.J. at 459.
Here the State concedes that the evidence is purely circumstantial in nature. The forgery charge relies upon the premise that defendant signed Darrell Kennedy's name on the fingerprint cards.
The forgery statute provides:
a. Forgery. A person is guilty of forgery if, with purpose to defraud or injure anyone, or with knowledge that he is facilitating a fraud or injury to be perpetrated by anyone, the actor:
(1) Alters or changes any writing of another without his authorization;
(2) Makes, completes, executes, authenticates, issues or transfers any writing so that it purports to be the act of another who did not authorize that act or of a fictitious person, or to have been executed at a time or place in a numbered sequence other than was in fact the case, or to be a copy of an original when no such original existed.
Although at first, the majority of discussion and argument centered around the absence of the fingerprint cards in evidence (an issue that we need not address), the only evidence addressing the forgery was the statements of the arresting officers, Detectives Bertone and Perrelli. As we noted earlier, that testimony was based solely on Darrell Kennedy's name appearing on the cards as well as a statement by Detective Perrelli that he "believed" defendant had signed an earlier consent form using the same name. More critically, Perrelli did not know who actually signed the fingerprint cards and only identified the name that appeared on the fingerprint cards. In sum, the forgery charge went to the jury on the following evidence:
1. Detective Perrelli acknowledging that someone signed the consent to search form "Darrell Kennedy."
2. Detective Perrelli not knowing who had "prepared" the fingerprint cards.
3. Detective Perrelli acknowledging the date on the fingerprint cards was August 3, 2006.
4. Defendant produced a driver's license in the name of "Darrell Kennedy."
No offer was made of the officer who had witnessed the signatures, no offer was made to identify Darrell Kennedy, no comparison of the consent form signature and the fingerprint signatures was made or offered, no explanation was made or offered as to the procedures utilized regarding the signing of these fingerprint cards or under whose direction and supervision the cards were signed. In sum, the State failed to prove the elements of a forgery offense, specifically that Kennedy "made, completed, executed, authenticated, issued or transferred the writing". N.J.S.A. 2C:21-1a(2).
Because the State failed to prove the elements of the offense, the motion for judgment of acquittal was erroneously denied. See e.g. State v. Cuccio, 350 N.J. Super. 248, 257 (App. Div. 2002)(vacating ten fourth-degree convictions of weapon permit counts because the State failed to present evidence from which the jury could have found that the guns were purchased, acquired and received in New Jersey); State v. Jackson, 326 N.J. Super. 276, 281 (App. Div. 1999)(reversing a cocaine possession conviction as the mere presence of the defendant in the same room as a drawer with cocaine in it was not enough to establish possession); State v. Milton, 255 N.J. Super. 514, 521 (App. Div. 1992) (holding that mere presence of drugs in the bedroom where defendant, at an undisclosed time, may have slept was not enough to establish a prima facie case of possession of the contraband found).
The motion should have been granted and a judgment of acquittal entered.*fn2 The judgment of conviction as to Count V of the indictment is reversed, and we remand to the Law Division for the entry of a judgment of acquittal.
Reversed and remanded.