July 14, 2010
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
ALBERT BIANCO, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Criminal Part, Hunterdon County, Indictment No. 05-06-00271.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 11, 2010
Before Judges Rodríguez and Reisner.
Albert Bianco appeals from his conviction, following a jury trial, for third degree burglary, N.J.S.A. 2C:18-2a(1); third degree theft by unlawful taking, N.J.S.A. 2C:20-3a and -2b(2)(a); and third degree forgery, N.J.S.A. 2C:21-1a(2). Defendant was not tried with his co-defendant Jessica L. Patierno. She testified for the State. The judge granted the State's motion for an extended term and imposed concurrent terms aggregating ten years with a four-year parole disqualifier. In addition to the requisite fines and penalties, the judge ordered restitution of $1,348.95. We reverse the conviction. In addition, we dispose of a motion to reduce bail pending appeal. No. M-5796-09, which is rendered moot by virtue of the vacation of the conviction.
This is a summary of the evidence. Patierno, Anthony Auriemma and Donald Phillips met while all three were in grade school. By their twenties, each was addicted to heroin and cocaine. Patierno met defendant, whom she knew as "Skeeter", around that time. They bought illegal drugs from the same drug dealer. Patierno knew, and defendant admitted to her, that he had "ripped off" mutual friends by taking money from them to buy drugs and failing to deliver the drugs.
The trial record contained evidence of several crimes, including crimes in which defendant did not participate, although Auriemma, Phillips, and Patierno did participate. That evidence is at the core of the reason for the reversal in this case.
Patierno testified that on August 27, 2004, she, Auriemma and defendant went to the Califon A&P. She tried unsuccessfully to cash a check. Defendant said they would have to break into someone's house. Defendant drove Patierno and Auriemma to the Heimowitz residence. He knocked on the front door, holding a clipboard in his hand. When no one answered, he put gloves on and climbed in a window. Auriemma entered the house when defendant opened the front door. Patierno remained in defendant's car, acting as a lookout. She saw defendant and Auriemma back out of the house carrying a television set and a mug of loose change. Then Patierno, Auriemma and defendant drove to Newark and sold the television for forty bags of heroin and a few vials of cocaine. Defendant kept $8 in cash and some of the drugs.
Patierno also testified that on the morning of August 31, 2004, she was at Auriemma's house, when defendant arrived and asked if they had any money. They had none. Defendant left the house. When he returned, he had two checkbooks belonging to Michael Santillo, and two stolen credit cards. The group destroyed the credit cards. Auriemma signed several of the checks.
Patierno also testified that defendant had cashed a check on August 27, 2004 at the Washington A&P. Her recollection was that the check probably belonged to Jackie Gilligan and was written for more money than was present in the account. Defendant was not charged with this offense.
According to Patierno, on August 31, 2004, defendant uttered a forged check for $51.99 at the Califon A&P. The check belonged to Michael Santillo. It was stolen in a burglary at the Santillo residence. Patierno and defendant planned to cash checks at various A&P stores and use the proceeds to buy heroin in Newark. According to Patierno, she and defendant went first to the Califon A&P. Defendant cashed check number 149, belonging to Santillo, in the amount of $51.99 at 3:01 p.m.
Patierno further testified that she and defendant also went to the Washington A&P on August 31. While there, she forged Santillo check number 101 and cashed it for $79.29 at 1:50 p.m. She also cashed forged check number 102 at the Washington A&P for $51.99 at 1:57 p.m.
Auriemma testified that he cashed forged Santillo check number 130 for $179.39 at the Washington A&P at 2:04 p.m. on August 31. Auriemma cashed Santillo check number 128 for $158.62 at the Clinton A&P at 9:47 p.m. on the same date. Santillo check number 108 was cashed for $22.35 at the Basking Ridge A&P at 3:47 p.m. on August 31. It is unclear who cashed the check. Phillips testified that on September 1, 2004, he and Auriemma forged and cashed several Santillo checks at A&P stores in Califon and Clinton.
Santillo testified and confirmed that his home was burglarized on August 31, 2004. He did not know defendant and had not given permission to anyone to cash any of his checks.
Joan Heimowitz testified that on August 27, 2004, after a day at the beach, she returned to her home in Califon and found the house a mess with many objects strewn about. Her television, its remote control, and a mug full of loose coins, were missing.
Patricia Del Guercio, the Clinton A&P store manager, testified that on August 31, 2004, a cashier told her that a young woman was attempting to use a check to pay for items, and to receive $50 over the amount of the purchase. Del Guercio told the cashier to request identification from the young woman, later identified as Patierno. Del Guercio requested identification because the check was from a securities account in the name of a married couple, and in Del Guercio's opinion, Patierno looked too young to be married or to have an investment account. When asked for identification, Patierno left the store, leaving Santillo check number 103 behind. Del Guercio called Susan Santillo and told her that someone had tried to cash one of her checks.
Del Guercio alerted the other stores in the area not to cash any Santillo checks. She called Detective Sergeant Joyce Henshaw, an investigator in the Hunterdon County Prosecutor's Office, who was at the Santillo home investigating the burglary.
Other evidence at trial revealed that Phillips and Auriemma attempted to cash a Santillo check in the Basking Ridge A&P. When the manager was summoned, Phillips and Auriemma left the store. They were stopped shortly thereafter by the Bernards Township Police and arrested. Before the police stopped them, Auriemma threw the Santillo checkbook, drugs and hypodermic needles out of the vehicle.
Henshaw visited the Clinton A&P on September 1, 2004. She learned that two males, later identified as Auriemma and Phillips, had cashed Santillo check number 128 at the Clinton A&P on August 31 for $158.62. Henshaw notified Bernards Township Detective John Burger that a group of individuals was traveling up and down Route 78 forging checks, which had been stolen in a burglary in Hunterdon County. On the same day, the Basking Ridge A&P staff contacted Burger to tell him that Auriemma and Phillips, were attempting to cash one of the Santillo checks. Shortly thereafter, Bernards Township officers arrested Auriemma and Phillips. Burger and Henshaw interviewed Auriemma, who gave a statement, after receiving Miranda*fn1 warnings. Auriemma implicated Patierno and defendant. Phillips agreed to speak to the police and gave a statement in which he "told them what happened."
Hunterdon County Prosecutor's Detective Jeff Farneski was also involved in the investigation. After learning Auriemma and Phillips had been arrested, Farneski and Henshaw went to Bernards Township Police Headquarters and observed the interviews with Auriemma and Phillips. Then, Farneski participated in locating and arresting Patierno.
According to Farneski, Patierno was given Miranda warnings. She consented to an informal interview with the police and gave a recorded statement under oath. Patierno stated that defendant lived in Wind Gap, Pennsylvania. Farneski testified that he contacted the Wind Gap Chief of Police, who was familiar with defendant and his girlfriend. After police surveillance in Wind Gap was not successful in locating defendant, Farneski and other officers arrested defendant in Greenwich Township after receiving information on his location from his girlfriend.
At trial, Detective Henshaw identified fourteen exhibits relating to the Santillo checks, although defendant was charged with cashing only one, despite stealing all of the Santillo checks. Del Guercio identified six of the Santillo checks, although these were cashed by Auriemma and Phillips. Detective Henshaw also testified about the one check cashed by defendant and every check cashed by each of the defendants. Henshaw constructed a "time line" describing the cashing of each check in sequence. Displaying his time line on an easel for the jury, he testified as to the time, date, amount and location of each forged check.
On appeal, defendant contends:
THE ADMISSION OF AN EXTRAORDINARY AMOUNT OF UNDULY PREJUDICIAL EVIDENCE, INCLUDING PRIOR BAD ACT EVIDENCE AND EVIDENCE OF UNCHARGED OFFENSES, DENIED DEFENDANT A FAIR TRIAL (Raised in Part Below)
A. The Santillo Burglary, Checks And Credit Cards Stolen In The Santillo Burglary And Jewelry Found In Defendant's Car.
B. Forgery And Uttering Of The Stolen Checks.
C. Possession And Distribution Of Controlled Dangerous Substances And Uncharged Thefts.
D. Testimony That Defendant Was Known To The Police.
DEFENDANT WAS CHARGED WITH ONE BURGLARY, ONE THEFT, AND ONE CHARGE OF UTTERING A FORGED INSTRUMENT. THE JURY CHARGE ON ACCOMPLICE LIABILITY, WHICH INSTRUCTED THE JURY THAT IT COULD FIND DEFENDANT GUILTY AS AN ACCOMPLICE ON ALL OF THE CRIMES COMMITTED BY ALL OF THE CO-DEFENDANTS, DENIED DEFENDANT A FAIR TRIAL. TESTIMONY OF NEGATIVE EVIDENCE OF DEFENDANT'S CHARACTER WAS ADMITTED IN VIOLATION OF N.J.R.E. 404(c) AND DENIED DEFENDANT A FAIR TRIAL.
The State concedes these points.
In a July 20, 2009 letter, the Hunterdon County Prosecutor conceded that the convictions should be reversed due to these trial errors and the case remanded to the Law Division. The letter stated, "It is my professional opinion that the interrelated claims asserted by defendant [in the above three points] of his brief are, in effect, meritorious and cannot be persuasively rebutted." We agree with this concession and reverse the convictions.
Based on that concession, we reverse the convictions. We do not reach the remaining contentions:
THE TESTIMONY AND THE PROSECUTOR'S COMMENTS IN SUMMATION HIGHLIGHTED DEFENDANT'S FAILURE TO TESTIFY AND REVEALED THAT DEFENDANT DID NOT GIVE A STATEMENT WHEN ARRESTED, DEPRIVING DEFENDANT OF THE RIGHT TO DUE PROCESS OF LAW AND A FAIR TRIAL. (U.S. CONST. AMENDS. V, VI, XIV; N.J. CONST. (1947), ART. I, PARS. 1, 9, 10) (Not Raised Below).
DEFENDANT WAS DENIED A FAIR TRIAL WHEN DETECTIVES HENSHAW AND FARNESKI TESTIFIED THAT DEFENDANT WAS THE PERSON IN THE A&P SURVEILLANCE VIDEOTAPE (Not Raised Below). THE TRIAL WAS BRIMMING WITH ERROR. EVEN IF EACH INDIVIDUAL ERROR DOES NOT REQUIRE REVERSAL, THE AGGREGATE OF THE ERRORS DENIED DEFENDANT A FAIR TRIAL (Not Raised Below).
MOTION TO REDUCE BAIL PENDING APPEAL
Defendant has filed a motion to reduce the $50,000 bail set by the Law Division pending appeal. Because we vacate the convictions, the matter is no longer on appeal. Defendant may make a new application in the Law Division in light of the reversal. We express no view on the outcome of such a motion.
Reversed and remanded to the Law Division, Hunterdon County for a new trial.