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State v. Dilavore

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


October 14, 2010

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
JASON P. DILAVORE A/K/A JASON HUTCHINS, DEFENDANT-APPELLANT.

On appeal from Superior Court of New Jersey, Law Division, Morris County, Indictment No. 06-04-0518.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted September 20, 2010

Before Judges Grall and C.L. Miniman.

Defendant Jason P. Dilavore*fn1 appeals from a final judgment of conviction and sentence. We have assigned the victims of his offenses fictitious names. They are Jean, a woman that defendant had known since grammar school, her housemate Andy, and Andy's brother and next-door neighbor, Bob. A jury found defendant guilty of second-degree burglary of Jean and Andy's home, N.J.S.A. 2C:18-2a(1), b(2); fourth-degree stalking, N.J.S.A. 2C:12-10b; and fourth-degree criminal trespass, N.J.S.A. 2C:18-3a, committed on a date prior to the burglary. The judge found defendant guilty of two counts of simple assault, N.J.S.A. 2C:12-1a, one against Andy and one against Bob; and of harassment, N.J.S.A. 2C:33-4. Those offenses were charged in accusations.

At sentencing, defendant's conviction for harassment was merged with his conviction for stalking, and his conviction for simple assault of Andy was merged with his conviction for burglary, which was a crime of the second degree because defendant injured Andy. The judge sentenced defendant to a six-year term of imprisonment for burglary, which is subject to periods of parole ineligibility and supervision mandated by the No Early Release Act, N.J.S.A. 2C:43-7.2a, d(12), and he imposed concurrent sentences of 270 and 20 days, respectively, for the trespass committed prior to the burglary and for the simple assault of Bob.

I.

The State's evidence was as follows. Jean and defendant never dated, but they knew each other in grammar school and were close friends until defendant left their high school during his sophomore year. Fifteen years later, in 2004, they had a chance encounter in a Quick-Chek. Defendant told Jean he was married, had children and was living in Rockaway. Jean said she also lived in Rockaway. They parted after a brief conversation and without exchanging telephone numbers.

Jean is a real estate agent, and six months after their chance meeting at Quick-Chek, defendant called her cell phone and left a message, noting he had seen her number on a real estate sign. Thinking the call was related to her work, Jean called back. Defendant talked about his personal problems and asked Jean to meet him. She told him she was seeing someone and it was not a good idea.

Defendant made several attempts to arrange a meeting with Jean, but she declined. When Jean left work on November 30, 2004, defendant followed her car. At a red light, defendant left his car and came to Jean's window to ask why she was unwilling to give him a chance. Jean told defendant to leave her alone. Although defendant complied for a time, he subsequently resumed his efforts to contact her by cell phone and by mail.

In Spring 2005, defendant went to the house Jean shared with Andy. Andy answered the door, said Jean was sleeping but agreed to tell Jean he had visited. Jean later called defendant and directed him not to come onto her property again. Defendant said he would comply but pressed her for an explanation.

Thereafter, defendant continued to send text and phone messages to Jean. The substance of his communications shifted from his desire for a relationship to commentary on the character and conduct of the men in Jean's life and its negative impact on her. He expressed his belief that they were getting her involved with drugs. When Jean responded to defendant, she consistently expressed her desire to be left alone.

On November 21, 2005, defendant returned to Jean's home. He rang the bell, and Andy answered. From an upstairs window, Jean directed defendant to stay off her property. The police were called, but by the time they arrived, defendant had left.

Defendant returned the next day. Officer Pete Krowiak responded to a call and blocked defendant's exit from the driveway to Jean's house. The officer told defendant that Jean did not want to see or talk to him.

Although defendant told Officer Krowiak he understood, he continued to send text and voice messages to Jean's cell phone. In late February 2006, Jean spoke to defendant. He was upset and angry, "ranting and raving." When she told him he was scaring her, he said the men in her life were bad for her and "had to be taken care of." Jean sometimes ignored and sometimes responded to the messages.

At about 10:00 p.m. on March 5, 2006, defendant parked his car away from Jean's house and broke through the front door of Jean and Andy's home. Defendant entered and punched Andy in the face, grabbed him by the throat, and choked him and threatened to kill him. While they struggled, Jean went next door to Andy's brother Bob's house. Jean called the police and Bob left to help Andy. When Bob came into the house, defendant punched him in the face, and Bob and Andy struggled to restrain him.

Officer Michael Gosden responded. He heard yelling and screaming from outside and noticed that the frame of the front door had been broken. Inside, Officer Gosden found three men wrestling, and he "got on top of the pile." He learned that one of the men lived in the house and another had been stalking his girlfriend and broken into the home. The brothers had sustained visible but minor injuries.

The defense was a denial of defendant's intention to commit a crime inside the home coupled with a claim of self-defense. Defendant and his forensic psychiatrist, Dr. Azariah Eshkenazi, gave testimony in support.

According to defendant, Jean told him where she lived when they met at the Quick-Chek. He went to her office because he wanted to bring her coffee. The first time he drove past her house it was about 2:00 a.m. He drove by because he had heard that one of Jean's friends had died of a heroin overdose and was worried about Jean. As he passed the house, he saw a man leave the house, retrieve a package from under the backseat of a car and bring it inside. Viewing that conduct as suspicious, defendant became more concerned about Jean. Consequently, he returned the next morning and met Andy when he rang the doorbell.

Defendant believed that Jean had not come to the door because she had been up all night doing drugs, and he was alarmed. When he returned and Jean spoke to him from the upstairs window, she did not tell him never to return. She warned him that Andy had called the police. Defendant became so worried about Jean that he visited her father to share his concerns.

When he broke into her house, he hoped to catch her in the act of using drugs and thereby save her. He grabbed Andy because Andy came at him. When he did not see any drugs, he was going to leave the house but Bob arrived. When the brothers joined forces to assault him, he defended himself.

In Dr. Eshkenazi's opinion, defendant was suffering from a delusional disorder. At the time of the incident, he believed that Jean was endangered by drug use and the company she was keeping and he was acting to save her life. He did not intend to commit a crime inside when he entered her home.

The State's forensic psychiatrist, Dr. Louis Schlesinger, agreed that defendant was suffering from a delusional disorder and was obsessed with Jean. In his opinion, however, defendant knew what he was doing, acted with a purpose and had an intent.

The jurors, by their verdict, indicated their acceptance of the State's evidence.

II.

On appeal defendant's attorney raises three issues:

I. THE TRIAL COURT ERRED IN DENYING DEFENSE COUNSEL'S MOTION FOR A MISTRIAL ARISING OUT OF INADMISSIBLE HEARSAY GRATUITOUSLY VOLUNTEERED BY THE STATE'S EXPERT WITNESS CHARACTERIZING THE DEFENDANT AS AN "ANIMAL."

II. THE DEFENDANT WAS DENIED HIS RIGHT TO A FAIR TRIAL AS A RESULT OF TESTIMONY ELICITED FROM A POLICE OFFICER INFERENTIALLY CONNECTING HIM WITH PRIOR CRIMINAL CONDUCT. (NOT RAISED BELOW).

III. THE SENTENCE IMPOSED WAS MANIFESTLY EXCESSIVE.

In his pro-se supplemental brief defendant raises additional claims:

I. DEFENDANT[']S COUNSEL WAS NEGLIGENT IN THE PREPARATION OF THIS CASE THAT NO INVESTIGATION WAS PURSUED NOR BECAME A TRIAL ISSUE REGARDING COMPLETE DISCOVERY.

II. DEFENDANT[']S ATTORNEY RENDERED INEFFECTIVE ASSISTANCE OF COUNSEL BY FAILING TO FILE A MOTION TO SET ASIDE THE EVIDENCE BECAUSE THE VERDICT WAS THE RESULT OF UNCORROBORATED VICTIM TESTIMONY WHICH WAS INSUFFICIENT TO SUPPORT A CONVICTION BECAUSE THE VERDICT WAS AGAINST THE WEIGHT OF THE EVIDENCE.

III. DEFENDANT ASSERTS THAT MANY OF THE CLAIMS RAISED IN THIS SUPPLEMENTAL BRIEF MAY BE BEST DEEMED IN A POST CONVICTION RELIEF APPLICATION BECAUSE TRIAL COUNSEL RENDERED INEFFECTIVE ASSISTANCE OF COUNSEL. DEFENDANT SEEKS THIS COURT[']S RECOMMENDATION FOR REFERRAL.

IV. THE ROCKAWAY POLICE DEPARTMENT VIOLATED ALL DEPARTMENTAL POLICY AND PROCEDURES ASSOCIATED TO THIS CASE AND BECAUSE OF THOSE VIOLATIONS COMPROMISED THE INTEGRITY OF THE INVESTIGATION AND THAT [sic] FAILED TO INFORM THE DETECTIVE UNIT THEREBY MADE SAID OFFICERS ACTIONS UNPROFESSIONAL.

V. THE CUMULATIVE ERRORS DENIED DEFENDANT THE RIGHT TO A FAIR TRIAL.

A.

We reject defendant's claim that the trial judge erred when he denied defendant's request for a mistrial. The decision to direct a mistrial is left to the sound discretion of the trial judge. State v. Winter, 96 N.J. 640, 646-47 (1984); State v. DiRienzo, 53 N.J. 360, 383 (1969); Greenberg v. Stanley, 30 N.J. 485, 503 (1959). While there is no question that inadmissible evidence was improperly disclosed to the jurors, the trial judge, who has "the feel of the case," is in the best position to assess whether the prejudice can be eradicated "by a cautionary or limiting instruction, or instead requires the more severe response of a mistrial." Winter, supra, 96 N.J. at 646-47. The judge made that assessment, and he did not abuse his discretion.

The inadmissible evidence was disclosed during the testimony of the State's forensic psychiatrist. When eliciting the factual basis for Dr. Schlesinger's opinion, the prosecutor asked the psychiatrist if he had questioned defendant about discrepancies the doctor had noted between defendant's version of the events and the information contained in police reports and other discovery. In response to that question, the doctor recited the questions he had asked and defendant's responses.

Defense counsel interrupted when the doctor said, "I asked him about the police report where it said that he turned into an animal -." The judge promptly and clearly directed the jurors to disregard that statement. The judge instructed:

Ladies and Gentlemen, any comment you just heard with respect to[] the word "animal" and its context, I'm instructing you to disregard that. I'm striking that. Now, what does that mean? Do I really think you can forget it? No. So what I'm going to tell you when I strike something, that means I don't want you to forget it, I want you remember it but I want you to remember that you can't use it during your deliberations. Do you understand?

So, if you think you need it for some any - any purpose, I've stricken it, you can't use it. All right. Let's continue, please.

In addressing defendant's motion for a mistrial, the judge focused on the potential prejudice and considered the adequacy of the action he had taken to cure it. The judge relied not only on his clear instruction prohibiting any use of the improper testimony but also on the limiting instructions he had given prior to that testimony.

After accepting the doctor's qualifications as an expert the judge had explained:

Just because I've qualified him, that doesn't mean that you must accept everything that this witness says. You can accept it all, you can reject it all, you can accept that portion that you find is credible. That's up to you.

And I don't know if I mentioned this yesterday, but frequently, expert witnesses rely upon some out-of-court statements, we sometimes call that hearsay. Now, that's not substantive evidence. That's permitted so that you can understand how they arrive at their opinion. Okay? So you don't consider it as substantive evidence, but as a method or manner of explaining the expert's opinion.

Again, you alone will determine whether the defendant is guilty or not guilty of any of the offenses. . . .

In addition, during the psychiatrist's testimony on direct and prior to his reference to "animal," the judge reiterated and clarified his direction on the narrow purpose for which the jurors could consider facts reported by others:

I said that sometimes the experts testify as to hearsay statements . . . and I indicated to you that you could not consider that as substantive evidence of guilt. It can only be considered as evidence explaining the expert's opinion, and you can accept that opinion, you can reject that opinion. You can accept that portion you find credible and reject the portion that you find is not credible.

Viewing the remark in the context of the steps he had taken to assure a proper consideration of the expert's testimony, the judge concluded that a mistrial was not necessary to avoid a miscarriage of justice. There is nothing in this record that permits us to conclude that this determination was the product of an abuse of the judge's discretion. The instruction striking the testimony was clear and unequivocal. Defendant claims the jurors would not have been able to disregard the remark, but the judge addressed that possibility. With unmistakable clarity he told the jurors to remember that if they believed they needed to rely on that remark for any reason they could not use it at all.

Defendant attempts to equate the testimony of the State's expert in this case with that of the expert testimony causing this court to reverse a defendant's conviction in State v. Vandeweaghe, 351 N.J. Super. 467 (App. Div. 2000). In Vandeweaghe, the expert had related hearsay information about prior bad acts of the defendant that were never established at trial and the expert also voiced his opinion that defendant was an effective liar. Id. at 479, 480-81. Thus, there were multiple problems in that case. Vandeweaghe does not, as defendant argues, hold that an expert may not testify about hearsay upon which the expert relied to form an opinion. Rather, the case establishes guidelines for the admission and permissible use of hearsay relied upon by experts; those rules have importance in a case where the hearsay relates to facts not supported by admissible evidence. Id. at 481-82. Aside from the remark about the description of defendant found in a police report, which was promptly redressed by the judge, defendant points to no fact the expert relied upon that was not established at trial.

B.

Defendant also contends that his conviction should be reversed because the State introduced evidence inferentially linking him with other crimes. This objection was not raised below and is subject to review for plain error, which permits redress when an error is "clearly capable of producing an unjust result." R. 2:10-2.

The claim is based on a segment of Officer Gosden's testimony about his observations when he responded to the scene of the burglary and saw the ongoing struggle:

Q: Were you able to ascertain what was going on?

A: At that point, got a hold of everybody.

The two gentlemen that were on the right and left explained to me that the one gentleman lived there and that the gentleman that they were holding down broke into the house, and was stalking his girlfriend, and at that point, I knew who it was.

Although there was no objection, at the conclusion of Officer Gosden's testimony, the judge took action to eliminate any potential prejudice:

Ladies and gentlemen, I just want to remind you that you and you alone will determine whether or not there was an offense of stalking here, and you should not draw any inference from the comment the officer made that he knew who it was.

There are many reasons why people know police officers. They may go in and get fingerprinted because they want to possess a weapon lawfully. They may go in because they're looking to get a passport, do you follow me, and there are certain things they have to do. So you don't draw any inference from that comment.

Defendant contends that this testimony was improper lay opinion testimony that impermissibly connected him with prior criminal conduct. Any potential for prejudice from the references to what one of the brothers said about stalking and how the officer knew defendant was adequately addressed by the judge.

In assessing defendant's arguments, it is worth noting that the jurors had heard testimony about Jean's prior complaints and the police response. Viewed in that context, it is not at all clear that there was any potential for unfair prejudice; there was no reason for the jurors to infer that the officer knew defendant because of his involvement in some other criminal incident. Defendant's objections to this testimony lack sufficient merit to warrant any further discussion in a written opinion. R. 2:11-3(e)(2).

C.

Defendant contends that his sentence is manifestly excessive. He was convicted of a crime of the second degree, and the presumption of incarceration applied. N.J.S.A. 2C:44-1d. He received a six-year term of imprisonment, which is one year above the minimum sentence a judge may impose for a second-degree offense. N.J.S.A. 2C:43-6a(2). Moreover, because second-degree burglary falls within the purview of the No Early Release Act, the judge was obligated to impose a period of parole ineligibility equivalent to eighty-five percent of the term. N.J.S.A. 2C:43-7.2a, d(12).

Defendant was not a first offender. He had two prior convictions, one for a petty disorderly persons offense and one for a disorderly persons offense.

The judge found two aggravating factors, a risk that the defendant would commit another crime and a need for deterrence. N.J.S.A. 2C:44-1a(3), (9). He found those factors to be supported by defendant's "misconception as to the impact of his conduct" and his need for treatment.

The judge also found two mitigating factors, the hardship that imprisonment would cause due to his condition and services that would be available and the fact that defendant did not contemplate the harmfulness of his conduct. N.J.S.A. 2C:44- 1b(2), (11). Although he also considered a mitigation based upon defendant's relatively insignificant prior record, he concluded that a mitigation on that ground was not warranted because defendant committed the offenses in separate incidents that occurred within a brief period of time.

The judge balanced the aggravating and mitigating factors. In the end, he determined that the mitigating factors outweighed the aggravating factors and warranted a sentence below mid-range but above the minimum. The decision was not an easy one, and the judge gave it careful consideration in accordance with the guidelines of our sentencing laws.

Sentencing determinations are entitled to our deference. When a trial judge has "exercise[d] discretion in accordance with the principles set forth in the Code and defined by [the Supreme Court]," we may not disturb a sentence. State v. Bieniek, 200 N.J. 601, 607-08 (2010) (internal quotations omitted). We may intervene only if the sentence "represents an abuse of the lower court's discretion." State v. Gardner, 113 N.J. 510, 516 (1989). Moreover, we must accept the judge's findings on facts relevant to aggravating and mitigating factors when the findings are "'supported by substantial evidence in the record.'" State v. Cassady, 198 N.J. 165, 180-81 (2009) (quoting State v. O'Donnell, 117 N.J. 210, 216 (1989)). Applying those standards, we see no basis for us to intervene.

D.

We have considered the issues raised in defendant's pro se supplemental brief. The arguments in Points II, IV and V lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We have not considered the claims of ineffective assistance of counsel raised in Point I and suggested in Point III of defendant's pro se brief. Those claims concern matters outside the trial record, and defendant may raise them in a timely filed petition for post-conviction relief. See State v. Preciose, 129 N.J. 451, 459-60 (1992).

Affirmed.


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