August 3, 2010
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
WARREN J. KEPERLING, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Cape May County, Indictment No. 08-08-00556.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted June 16, 2010
Before Judges Cuff and Fasciale.
Defendant, Warren J. Keperling, appeals from a March 6, 2009 judgment of conviction based on a violation of the community supervision for life (CSL) provision of a sentence for a prior conviction of third degree endangering the welfare of a child., contrary to N.J.S.A. 2C:43-6.4d. We affirm.
On October 3, 2002, defendant pled guilty to third-degree endangering the welfare of a child, contrary to N.J.S.A. 2C:24-4(a). On January 24, 2003, he was sentenced to five years in prison and CSL. The judgment of conviction (JOC) memorialized defendant's obligation to "satisfactorily comply" with the CSL requirements. The January 2003 sentencing judge noted in the JOC that intensive drug and alcohol treatment was indicated.
Defendant was released from prison on December 1, 2005. Subsequently, he received two custodial terms after committing CSL violations. Defendant was released from imprisonment for the CSL violations on June 15, 2008. As a result of his December 1, 2005 release, defendant was familiar with the CSL process followed by the New Jersey State Parole Board (Parole Board). Generally, a Parole Board I-5 reporting instructions form (S-2) and a CSL form (S-3) are signed by the person released from prison, and the signature is witnessed by a Parole Board representative. That process was followed here.
Both documents are prepared in the regular course of business and are regularly maintained by the Parole Board. S-3 notified defendant about general and special conditions of his CSL and that a violation constituted a crime of the fourth-degree. S-3 instructed defendant to report to his parole officer, refrain from alcohol use, reside at an approved residence and obtain permission before moving, and enroll in a mental health program.
An I-5 Parole Board reporting instructions form (S-4) was presented to defendant when he was released on June 15, 2008. S-4 verified his State Bureau Identification (SBI) number as 410669-B, and confirmed that he was released with $29.35 in his pocket. It instructed defendant to immediately report to the District Eight office and gave him three different ways to do that. Upon his release, defendant left a voicemail for his parole officer, Joseph Martin.
On June 16, 2008, a representative from Cape May County Social Services (Social Services) contacted the owner of the Economy Motel, Hemant Chhotalal, to confirm that defendant would be placed at the motel that night. Defendant arrived at the Economy Motel with a one night voucher and was assigned room 105. Subsequently, defendant returned to the motel with two additional vouchers covering his stay from June 17 through July 7, 2008.
On June 19, 2008, Martin conducted a home visit at the Economy Motel at 11:00 a.m. Defendant did not answer the door to room 105. The motel's assistant manager verified that defendant still resided in room 105. Martin placed a written notice under the door to room 105 instructing defendant to report on July 2, 2008. He left the notice at that location because that was "where [defendant] was approved to reside."
On July 2, 2008, defendant failed to report as instructed. That day, Martin did not file a CSL violation, but rather, mailed a new reporting notice to defendant instructing him to report on July 9, 2008, at 2:00 p.m. The mailed reporting notice was not returned to sender.
On Saturday, July 5, 2008, a guest at the Economy Motel complained to Chhotalal that two men were loud and disruptive. Chhotalal approached defendant and observed that he was talking loudly, his speech was slurred, he could not stand well because his legs were giving out, and he appeared drunk. Chhotalal asked defendant to go back to his room and told him he would have to leave the motel on Monday. Chhotalal told defendant to go back to Social Services on Monday, July 7, 2008, to get a voucher for a new motel.
On July 8, 2008, Martin contacted Erin Lindsey, a counselor at a mental health center, to see if defendant reported there as required by his special CSL conditions. Lindsey informed Martin that defendant reported to her on July 8 and was given a July 10 intake appointment at the center. Lindsey reported to Martin that defendant gave her an address at the Simpson Motel, room 108. Martin contacted representatives at both the Economy and Simpson Motels and concluded that defendant was evicted from the Economy Motel, abused alcohol, and relocated without telling him.
On July 9, 2008, defendant failed to report to Martin. The next day, Martin requested a parole warrant (S-5) to arrest defendant for violating his CSL. The warrant contained the same SBI number of 410669-B listed on S-2, S-3 and S-4.
The next day, Detective Clint Stocker arrested defendant. Stocker smelled alcohol on defendant's breath at the scene of the arrest, in the patrol car, and at the police station.
On August 5, 2008, defendant was indicted and charged with violating his CSL, contrary to N.J.S.A. 2C:43-6.4d.
The sole issue during the January 14, 2009, bench trial was whether defendant was on notice of his obligation to report and refrain from the use of alcohol. To support its contention that defendant was on notice, the State introduced evidence that: (1) defendant was told at the January 24, 2003 sentencing that he had an obligation to comply with the requirements of CSL; (2) he was on CSL for three years before his July 10, 2008 arrest, and was familiar with the need to report and refrain from alcohol; (3) when he was released on December 1, 2005, he signed both the reporting instructions form (S-2) and CSL conditions form (S-3) which outlined the general and special CSL conditions; (4) he signed S-4 which instructed him to report immediately after his June 15, 2008, release, because he followed that instruction by leaving a voicemail for Martin at the district eight office, the location referenced in S-4; (5) on June 19, 2008, Martin delivered a report notice to room 105 at the Economy Motel, instructing defendant to report on July 2; (6) on July 2, 2008, defendant was mailed instructions to report on July 9; and (7) defendant complied with S-3 when he attempted to enroll in a mental health program.
Defense counsel objected on relevancy grounds to the admissibility into evidence of S-2, S-3, and S-4. He argued all three documents were irrelevant because Martin did not witness defendant's signature. Defense counsel conceded at the bench trial that the objection went more to the weight accorded each document, rather than their admissibility into evidence.
Under the totality of the circumstances, the trial judge found that defendant was on notice of the CSL conditions. The judge admitted into evidence S-2, S-3, and S-4 under the business records exception, N.J.R.E. 803(c)(6), and found them to be inherently reliable.*fn1 He found that each document was made in the regular course of business and was regularly maintained by the Parole Board. He placed greater weight on S-4, but noted that all three contained defendant's SBI number, and S-2 and S-3 contained the same prisoner number. The judge remarked that defendant's signature on all three documents was similar. He found that defendant resided in room 105 of the Economy Motel, the location at which Martin provided the notice to report on July 2, 2008.
Having determined that defendant failed to report and used alcohol, the judge sentenced defendant to one year in prison. This appeal followed.
On appeal, defendant raises the following points:
THE TRIAL COURT ERRED IN ADMITTING S-2, S-3 AND S-4 INTO EVIDENCE[,] AND IN THE WEIGHT IT ACCORDED TO THOSE EXHIBITS[,] AS THOSE DOCUMENTS WERE NOT PROPERLY AUTHENTICATED AND IDENTIFIED UNDER N.J.R.E. 901[,] AND NO CHAIN OF CUSTODY COULD BE ESTABLISHED FOR THOSE DOCUMENTS.
THE TRIAL COURT'S FINDING OF APPELLANT'S GUILT WAS NOT SUPPORTED BY SUFFICIENT CREDIBLE EVIDENCE.
The trial judge's finding that defendant failed to report to his parole officer as directed was not supported by substantial credible evidence.
The trial judge's finding that defendant had consumed alcohol was not supported by substantial credible evidence.
"[A] trial court's evidentiary rulings are 'entitled to deference absent a showing of an abuse of discretion . . . .'" State v. Brown, 170 N.J. 138, 147 (2001) (quoting State v. Marrero, 148 N.J. 469, 484 (1997)). The scope of our review of a judge's evidentiary ruling is generally limited to ascertaining whether this discretion was mistakenly exercised, provided the ruling is not inconsistent with applicable law. State v. Burns, 192 N.J. 312, 332 (2007) (citing Brenman v. Demello, 191 N.J. 18, 31 (2007)); State v. B.M., 397 N.J. Super. 367, 374 (App. Div. 2008).
It is undisputed that S-2, S-3 and S-4 qualified as business records under N.J.R.E. 803(c)(6). The documents were made in the regular course of business of the Parole Board, and it was the regular practice of the Parole Board to make them. Each document was kept in the Parole Board's "case file" for defendant. Martin brought the documents to court from defendant's "case file."
A document is authenticated when there is "evidence sufficient to support a finding that the matter is what its proponent claims." N.J.R.E. 901. The record demonstrates that S-2, S-3 and S-4 are specific to defendant's reporting instructions and CSL conditions. The judge analyzed how all three documents were related to each other and to defendant's conduct.
The judge placed "substantial weight" on S-4 because it was "the closest in time to . . . the alleged violation[s]." S-4 was authenticated based on the detail it contained and defendant's conduct after his June 15, 2008, release. Specifically, S-4 was prepared on June 6, 2008, and defendant's name was typed on it. S-4 referred to defendant's June 15, 2008 release with $29.35, and he was, in fact, released on that date. It contains defendant's signature and the witnessing signature of a Parole Board representative. S-4 required defendant to report to the District Eight office immediately on release, and defendant followed that instruction by leaving a voicemail for Martin at that location. S-4 and S-5, the parole warrant, have identical SBI numbers.
The judge assigned "some weight" to defendant's signatures on S-2 and S-3. Both documents were authenticated based on the detail contained in them and defendant's conduct. He concluded that defendant's signatures on S-2 and S-3 were "sufficiently similar" to defendant's signature on S-4. S-2 and S-3 contained specific information connecting them to each other and to S-4. For instance, S-2 and S-3 have the same prisoner number, have defendant's typed name, and both correspond to his December 1, 2005 release. S-3 and S-4 have the same SBI number, 410669B. S-3 lists defendant's general and special CSL conditions. Special condition number one required defendant to enroll in a mental health program. Defendant's attempt to contact Lindsey at the mental health center on July 8, 2008, is further proof that defendant received S-3. Under the totality of the circumstances, the trial judge did not abuse his discretion either by admitting the documents into evidence or by the weight he accorded to each.
Defendant argues that there was insufficient credible evidence to demonstrate he failed to report as instructed and abused alcohol. We disagree.
Defendant failed to report to his parole officer on July 2 and July 9, 2008. The record demonstrates that Martin made a home visit to room 105 at the Economy Hotel on June 19, 2008, and left defendant written instructions to report on July 2. When defendant failed to report on July 2, 2008, Martin mailed him instructions to report on July 9. The judge found that defendant received both notices. The assistant manager at the Economy Motel confirmed that defendant was assigned room 105. The notice to report on July 9, 2008, mailed on July 2, was never returned to sender. Therefore, defendant failed to report twice. Further, the record demonstrates that at the time of the CSL violation, defendant was on CSL for three years and knew about the obligation to report.
Defendant failed to refrain from the use of alcohol twice. Chhotalal and Stocker observed that defendant had been drinking alcohol. On Saturday, July 5, 2008, Chhotalal observed defendant talking loudly and his speech was slurred. He could not stand because his legs gave out, and he appeared drunk. The arresting police officer, Stocker, smelled alcohol on defendant's breath on July 10, 2008, at the scene of the arrest, in the patrol car, and at the police station.
Our review of the record demonstrates that there is sufficient credible evidence in the record to support the judge's findings beyond a reasonable doubt that defendant failed to report and failed to refrain from alcohol use. State v. Locurto, 157 N.J. 463, 471 (1999) (quoting State v. Johnson, 42 N.J. 146, 162 (1964)).