On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 09-09-716.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Grall and Messano.
Along with fellow Irvington police officer Brian Rice, defendant Brandis Puryear was indicted by the Essex County grand jury and charged with second-degree conspiracy to commit official misconduct, N.J.S.A. 2C:5-2 and 2C:30-2; second-degree official misconduct, N.J.S.A. 2C:30-2; and fourth-degree tampering with evidence, N.J.S.A. 2C:28-6(1).*fn1 At trial, after the State rested, the judge granted defendant's motion for acquittal as to the official misconduct count. The jury convicted defendant of conspiracy and acquitted her of the tampering count.*fn2 Defendant was sentenced to a term of three years in prison; her sentence has been stayed pending appeal. Defendant raises the following issues for our consideration:
THE EVIDENCE PRESENTED AT TRIAL WAS INSUFFICIENT TO ESTABLISH THAT BRANDIS PURYEAR CONSPIRED TO COMMIT OFFICIAL MISCONDUCT
A. THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING DEFENDANT'S MOTION FOR JUDGMENT OF ACQUITTAL AND IN THE ALTERNATIVE FOR A NEW TRIAL
B. THE EVIDENCE INTRODUCED AT TRIAL WAS INSUFFICIENT TO ESTABLISH AGREEMENT
C. PURYEAR NEITHER PROMOTED NOR FACILITATED OFFICIAL MISCONDUCT
D. THE EVIDENCE WAS INSUFFICIENT TO ESTABLISH THAT THE ACTIONS CONSTITUTING THE OBJECT OF THE CONSPIRACY ACTUALLY CONSTITUTED OFFICIAL MISCONDUCT
THE COURT'S DECISION TO PERMIT THE STATE TO ESSENTIALLY CROSS EXAMINE DENNIS GARNER WITH A STATEMENT IT HAD PREVIOUSLY OFFERED AS UNTRUTHFUL WAS PREJUDICIAL ERROR AND MERITS REVERSAL
STATEMENTS MADE BY DEFENDANT PURYEAR SHOULD HAVE BEEN ENTITLED TO USE IMMUNITY PURSUANT TO GARRITY V. NEW JERSEY
THE TRIAL COURT IMPROPERLY QUESTIONED A KEY WITNESS
THE COURT'S DECISION TO VEER FROM THE AGREED UPON JURY INSTRUCTIONS AND PROVIDE AN EXAMPLE OF CIRCUMSTANTIAL EVIDENCE THAT WAS NEARLY FACTUALLY INDISTINGUISHABLE FROM THE FACTS IN THE CASE AT BAR MERITS A REMAND FOR A NEW TRIAL
We have considered these arguments in light of the record and applicable legal standards. We reverse.
The testimony at trial revealed that at approximately 1:00 a.m. on November 17, 2009, defendant was working off-duty, but in uniform, as a security guard at a Pathmark store in Irvington. At approximately the same time, Rice entered the Pathmark in plainclothes to make a purchase and Juwann Shabazz also entered the store to use the automated teller machine.
Shabazz recognized defendant from an encounter earlier in the day when she directed him and a few of his friends who were in front of a liquor store to disperse. Shabazz approached defendant to talk, and ...