On appeal from the Superior Court of New Jersey, Law Division, Cumberland County, Indictment No. 09-09-00814.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 13, 2011
Before Judges Carchman and Nugent.
A. John Falciani, attorney for appellant. Jennifer Webb-McRae, Cumberland County Prosecutor, attorney for respondent (G. Harrison Walters, Assistant Prosecutor, of counsel and on the brief).
Following a jury trial, defendant Richard Joseph was convicted of second-degree possession of a weapon for unlawful purposes, N.J.S.A. 2C:39-4a(1); and fourth-degree aggravated assault by pointing a firearm, N.J.S.A. 2C:12-1b(4). The trial judge sentenced defendant to an aggregate term of imprisonment of five years with a mandated three-year period of parole ineligibility. N.J.S.A. 2C:43-6c. Defendant appeals, and we affirm.
These facts adduced at trial reveal that the criminal charges evolved from a business dispute between defendant and the victim Pamela Bay. Defendant and a partner Robert Simon operated a retail florist shop under the trade name of Magnolia Blossom (Magnolia). Bay, a wholesale florist, had done business with Magnolia for eleven years. In October 2006, Bay contacted defendant about Magnolia's outstanding balance due to Bay, whereupon defendant and Simon informed her they were selling their business and would pay the debt in full by January 5, 2007. No funds were forthcoming, so on January 9, 2007, Bay spoke with Simon, who told her to contact Magnolia's attorney, John Takacs. According to Simon, Takacs was "cutting checks to. . . outstanding wholesalers" arising from the settlement of their business. Bay thereafter spoke with Takacs who, while the attorney administering the settlement, was unaware of any money to be distributed to her. He advised Bay to "keep trying to contact" Simon and that he would also reach out to Simon. Bay tried, unsuccessfully, to reach Simon by contacting the new owner of Magnolia.
On January 22, 2007, at approximately 5:00 p.m., Bay and her business partner, Alan Hoolahan, went to Simon and defendant's home. Bay knew where they lived because they had previously provided her with the address. Bay proceeded to the backdoor, but since no one was home, she wrote a note on the invoice statement requesting that someone contact her and placed the note in the mailbox. The next day, Hoolahan went back to the house alone. He spoke with defendant who said Simon had the money but would be out of town for the next few weeks.
According to Simon, because Bay and Hoolahan did not have defendant and Simon's phone number "they could only come to the property." According to Simon, Bay and Hoolahan "stalk[ed] the house for a while, three or four nights before" February 20, 2007, "[p]ound[ing] on all of the doors of the house;" Bay said, "[y]ou didn't think I would find you? I'm going to F'ing burn you out."
Both Simon and another witness Joseph Lynch indicated there was an eight-foot gate at the end of the driveway and "no trespassing" signs on the gate. According to Lynch, the gate across the driveway, the fence around the property, and the "no trespassing" signs have "always been" on the property.
The business dispute became exacerbated when according to Takacs, Bay called him after their initial discussion; he told her his clients disputed the debt and would not pay it. He further informed her that "she was not to have any contact with them" because his clients had indicated somebody was harassing them and leaving nasty notes.*fn1
On February 20, 2007, at 9:00 a.m., Bay and Hoolahan drove to defendant's home in an attempt to retrieve the $9,300 debt owed. They entered through the driveway, did not move any gates, and did not notice any "no trespassing" or "keep out" signs. Bay knocked twice on the backdoor, looked through the sliding glass door, and saw defendant turn into another room. He then returned to the door with a gun. Defendant threw the door open, pointed a semiautomatic handgun within inches of Bay's face, "slid the gun," and threatened to "blow [her] F'ing brains out" if she did not get off his property. As he kept screaming, she backed up and told him to put the gun down. She thought he was going to kill her. She and Hoolahan got in their van, left the property, and called the police.
New Jersey State Trooper, A.*fn2 Scotti, was dispatched to defendant's home on February 20, 2007, arrived within minutes, and met with Bay and Hoolahan a short distance from defendant's home. Scotti then drove to defendant's home, parked his marked police car at the end of the driveway, walked around a partially open swing gate at the bottom of the driveway, and approached defendant who was outside. Scotti's description of how he entered the property was placed in issue as Scotti allegedly told a Cumberland County Investigator that "he crawled through a fence to make entry onto the property."
Scotti read defendant his Miranda*fn3 rights, whereupon defendant "stated that he felt Ms. Bay was trespassing when he saw her on his property." Defendant admitted "answer[ing] the door with a handgun and [telling] her to leave or he would call the police."*fn4
Defendant did not testify.
On appeal, defendant raises the following arguments:
I. THE INDICTMENT AGAINST THE APPELLANT SHOULD BE DISMISSED, OR IN THE ALTERNATIVE, A NEW TRIAL SHOULD BE ORDERED DUE TO THE LOSS OF MATERIAL AND EXCULPATORY EVIDENCE BY THE PROSECUTOR'S OFFICE
II. APPELLANT/DEFENDANT SHOULD BE GRANTED A NEW TRIAL BECAUSE THE TRIAL JUDGE ALLOWED THE FIFTEEN-YEAR-OLD CONVICTION AND THE
DISBARRMENT OF A KEY DEFENSE WITNESS CALLED TO CONTRADICT THE STATE'S MAIN WITNESS TO BE USED FOR IMPEACHMENT PURPOSES
III. IN THE THIRD INDICTMENT-GRAND JURY HEARING, COUNT TWO OF THE INDICTMENT SHOULD HAVE BEEN DISMISSED BECAUSE INSUFFICIENT EVIDENCE WAS PRESENTED TO THE GRAND JURY
IV. APPELLANT/DEFENDANT SHOULD BE GRANTED A NEW TRIAL BECAUSE THE PROSECUTOR SUMMATION COMMENTS WERE IMPROPER AND ...