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State of New Jersey v. Richard Joseph


October 5, 2011


On appeal from the Superior Court of New Jersey, Law Division, Cumberland County, Indictment No. 09-09-00814.

Per curiam.


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:








We address the issues seriatim.

Defendant first asserts that the State's loss or destruction of certain color photographs warrants a dismissal of defendant's indictment or a new trial. The State's investigator Nicholina Pennington had taken photographs of defendant's property, including photographs of gates, fences, and "no trespassing" signs on the property. On the third day of trial, the prosecutor, in response to defendant's prior request for color photographs, informed the court that he went to retrieve the color photographs that morning, but the disk containing them was not in the State's evidence file. Defense counsel called Investigator Pennington as a witness, and she testified she took photographs of defendant's property on June 19, 2007, and that they were printed in black and white, not in color, but "they can be [printed in] color." She indicated they were saved "on a camera, and then they were put on a disk and printed out and put in our evidence." Pennington reviewed the black and white photographs and observed they accurately depicted defendant's property. When asked if she could produce the color photographs at a later point, she responded, "I should be able to; yes." Later that day, the disk containing the photographs could not be found, as it was inadvertently misplaced or lost by the State, so color photographs could not be produced; counsel discussed the issue with the court.*fn5

The court determined it would "advise [the jury] color photographs of [the] scene were not made available to the defense[,] [and] that fact will additionally be before the jury, and [defense counsel] can make whatever reasonable arguments based upon those facts [he] deem[s] appropriate." The court told the jury the color photographs were not made available to the defense. Defense counsel in summation explained the lack of color photographs and proffered what they would have shown: namely, evidence that defendant's property contained old, rusty, discolored "no trespassing" signs and fencing, suggesting that these items were present on February 20, 2007. The court instructed the jury on defendant's argument of defense of premises, pursuant to N.J.S.A. 2C:3-6.

"[A] defendant has a constitutionally protected privilege to request and obtain from the prosecution evidence that is either material to the guilt of the defendant or relevant to the punishment to be imposed." State v. Hollander, 201 N.J. Super. 453, 478 (App. Div.) (citing Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 1196, 10 L. Ed. 2d 215, 218 (1963)), certif. denied, 101 N.J. 335 (1985). See also State v. Marshall, 123 N.J. 1, 109-10 (1991). A loss or destruction of physical evidence in a criminal trial requires the court to consider three factors in determining whether there has been a due process violation: (1) whether there was bad faith or connivance on the part of the government; (2) whether the evidence was sufficiently material to the defense; and (3) whether defendant was prejudiced by the loss or destruction of the evidence. Hollander, supra, 201 N.J. Super. at 479. See also State v. Casele, 198 N.J. Super. 462, 470 (App. Div. 1985); State v. Washington, 165 N.J. Super. 149, 155 (App. Div. 1979). "[A] defendant must show that evidence withheld is material exculpatory evidence." State v. Mustaro, 411 N.J. Super. 91, 102 (App. Div. 2009) (internal quotations omitted).

When the evidence withheld is no longer available, to establish a due process violation a defendant may show that the evidence had an exculpatory value that was apparent before [it] was destroyed and that the defendant would be unable to obtain comparable evidence by other reasonably available means. Alternatively, if the defendant cannot establish that the now lost evidence had apparent exculpatory value and can show only that the evidence was potentially useful or exculpatory, then the defendant can show a due process violation by establishing that the evidence was destroyed in bad faith. [Id. at 102-03 (internal quotations and citations omitted).]

Here, defendant's entitlement to relief depends upon a showing that his right to due process was violated by the State's failure to preserve the color photographs. Defendant has not shown that the color photographs had an apparent exculpatory value; moreover, defendant failed to establish that he was unable to obtain comparable evidence by other reasonably available means. Defendant contends the color photographs were critical to contravene the State's witnesses who testified they did not notice the "no trespassing" signs and to support his defense of property claim; however, defendant's claim that the color photographs would have depicted rust and sun discoloration is speculative. As the prosecutor pointed out, "I don't [know] how he can know he needs them because he's never seen the color photographs." Defendant has not explained how these color photographs would have exculpated him, and in fact represented to the court "it is not seemingly an earth-shaking issue, but color photographs are going to show whether or not there was rust present." Moreover, there was comparable evidence available: black and white photographs were made available to depict defendant's property, and there was testimony to support defendant's argument that the signs were not newly erected and were present on the property when Bay and Hoolahan came onto the property.

Similarly, defendant failed to establish any bad faith on the part of the State. The trial judge pointed out that the color photographs may have depicted rust or discoloration from the sun on the "no trespassing" signs that could not be accurately depicted in the black and white photographs, but there is nothing in the record to suggest the State destroyed the disk in bad faith. The loss of the color photographs did not deprive defendant of a fair trial. Defendant had the benefit of the black and white photographs to establish a visual basis for asserting the presence of the various signs and gates on the property. We find no error here.

Defendant next argues that permitting the State to impeach his witness, Takacs, on a fifteen-year-old conviction for mail fraud was error under the federal rule of evidence, thereby warranting reversal of his conviction and a new trial.

The judge relied on two 1997 attorney disciplinary decisions involving Takacs.*fn6 The judge concluded that the cases were competent evidence as to Takacs' prior conviction, and since the conviction was for fraud, it directly affected the witness' credibility. The judge also noted that even if the ten-year rule applies to non-defendants, it is not a fixed rule; moreover, the offense occurred in 1995, and the decisions were rendered in 1997. Accordingly, the judge permitted the State to cross-examine Takacs on his "prior conviction, as well as the date of the conviction, what the charge was, and what any sentence was, but . . . limit[ed] it to just those issues."

On defendant's direct examination of Takacs, when asked if he had ever been convicted of a crime, Takacs responded:

I did . . . there was a situation I was involved in with a doctor; it had to do with a motor vehicle accident, and . . . I was sent a . . . target letter . . . . I accepted responsibility; I entered a guilty plea to a crime . . . I lost my license to practice for three years in . . . '95, '96, '97. It's been over [fifteen] years; yes.

On cross-examination, the State elicited testimony from Takacs that he was convicted in federal court for mail fraud, resulting in suspension of his law license, criminal probation and community service. The judge did not give an immediate limiting instruction, but in the final charge, he instructed the jury:

You've heard evidence that John Takacs has previously been convicted of a crime. This evidence may be only used in determining the credibility or believability of the witness' testimony. A jury has a right to consider whether a person who has previously failed to comply with society's rules as demonstrated through a criminal conviction would be more likely to ignore the oath requiring truthfulness on the witness stand than a person who has never been convicted of a crime. You may consider in determining this issue the nature and degree of the prior conviction and when it occurred. You are not, however, obligated to change your opinion as to the credibility of this witness simply because of a prior conviction. You may consider such evidence along with all the other factors we've previously discussed in determining [the] credibility of that witness.

N.J.R.E. 609 provides:

For the purpose of affecting the credibility of any witness, the witness' conviction of a crime shall be admitted unless excluded by the judge as remote or for other causes. Such conviction may be proved by examination, production of the record thereof, or by other competent evidence.

"[W]hether a prior conviction may be admitted into evidence against a criminal defendant rests within the sound discretion of the trial judge." State v. Sands, 76 N.J. 127, 144 (1978). See also State v. Hutson, 211 N.J. Super. 49, 53 (App. Div. 1986), aff'd, 107 N.J. 222 (1987). "Ordinarily evidence of prior convictions should be admitted and the burden of proof to justify exclusion rests on the defendant." Sands, supra, 76 N.J. at 144.

The key to exclusion is remoteness.

Remoteness cannot ordinarily be determined by the passage of time alone. The nature of the convictions will probably be a significant factor. Serious crimes, including those involving lack of veracity, dishonesty or fraud, should be considered as having a weightier effect than, for example, a conviction of death by reckless driving.

In other words, a lapse of the same time period might justify exclusion of evidence of one conviction, and not another. The trial court must balance the lapse of time and the nature of the crime to determine whether the relevance with respect to credibility outweighs the prejudicial effect to the defendant. [Id. at 144-45.]

This rule applies not only to criminal defendants who might testify, but also to witnesses who have prior criminal convictions. State v. Balthrop, 92 N.J. 542, 544-46 (1983); Biunno, Current N.J. Rules of Evidence, comment 4 on N.J.R.E. 609 (2011).

Defendant relies on the federal analog to N.J.R.E. 609 in advancing the "ten-year" rule. See Fed. R. Evid. 609(b). However, we have previously recognized the distinction between the two rules:

In contrast to N.J.R.E. 609, the federal analog, Fed. R. Evid. 609(b), expressly prohibits a prosecutor from seeking to impeach a defendant's credibility with evidence of a conviction if "more than ten years has elapsed since the date of the conviction or of the release from confinement imposed for that conviction, whichever is the later date" unless the judge determines that "the probative value of the conviction . . . substantially outweighs its prejudicial effect." Thus, unlike Fed. R. Evid. 609(b), Sands and N.J.R.E. 609 contain no benchmark or brightline rule to assist trial judges in making the determination of when a conviction has become so remote that its probative value for impeachment purposes is outweighed by its potential for undue prejudice. [State v. Murphy, 412 N.J. Super. 553, 564 (App. Div.), certif. denied, 203 N.J. 440 (2010).]

Here, the judge did not abuse its discretion in permitting the State to impeach Takacs with his prior conviction for mail fraud. Fraud goes directly to the credibility of the witness. The twelve-year-old conviction was not too remote, as the fraud arose out of an incident in 1995 and he testified in 2007. We reject defendant's argument.

Defendant next argues that the charge of possession of a weapon for an unlawful purpose should have been dismissed because there was insufficient evidence presented to the grand jury on whether he had a purpose to use the gun unlawfully. The State maintains the court did not abuse its discretion in finding there was sufficient evidence presented to the grand jury to sustain the indictment.

Before the grand jury, Bay testified that she went to defendant's home "to collect a remaining balance." Bay testified that defendant came to the door with a gun in his hand, "pulled back the slide on it, swung the door open and threw it in my face and threatened to blow my F'ing brains out." The judge found there was sufficient evidence before the grand jury and declined to dismiss the weapons count.

"There are four elements to [N.J.S.A. 2C:39-4]: (1) the object possessed was a firearm; (2) defendant possessed it; (3) the purpose of the possession was to use the firearm against another's property or person; and (4) defendant intended to use it in a manner that was unlawful." State v. Banko, 182 N.J. 44, 56-57 (2004) (citation omitted).

Indictments are presumed valid. State v. Schenkolewski, 301 N.J. Super. 115, 137 (App. Div.), certif. denied, 151 N.J. 77 (1997) (citations omitted). Because they should be dismissed only "on the clearest and plainest grounds, the test should be a rigorous one." State v. Hogan, 336 N.J. Super. 319, 344 (App. Div.), certif. denied, 167 N.J. 635 (2001).

In determining the sufficiency of the evidence to sustain the indictment, every reasonable inference is to be given to the State. Further, the evidence need not be sufficient to sustain a conviction, but merely sufficient to determine that there is prima facie evidence to establish that a crime has been committed. [State v. N.J. Trade Waste Ass'n, 96 N.J. 8, 27 (1984).]

"[E]ven if an indictment appears sufficient on its face, it cannot stand if the State fails to present the grand jury with at least 'some evidence' as to each element of a prima facie case." State v. Bennett, 194 N.J. Super. 231, 234 (App. Div. 1984) (citations omitted), certif. denied, 101 N.J. 224 (1985). See also State v. Fleischman, 383 N.J. Super. 396, 399 (App.

Div. 2006), aff'd, 189 N.J. 539 (2007). "A motion to dismiss an indictment is addressed to the sound discretion of the court." Bennett, supra, 194 N.J. Super. at 233 (citations omitted). See also State v. Warmbrun, 277 N.J. Super. 51, 59-60 (App. Div. 1994), certif. denied, 140 N.J. 277 (1995). "[E]xercise of [this] discretionary authority ordinarily will not be disturbed on appeal unless it has been clearly abused." State v. Hogan, 144 N.J. 216, 229 (1996).

We conclude that defendant's argument lacks merit. There was sufficient evidence before the grand jury to find defendant had a purpose to use the gun unlawfully, as Bay testified defendant pointed the gun at her and threatened to kill her after she attempted to collect a debt. We find no abuse of discretion in denying the application to dismiss the indictment.

Defendant asserts that there was prosecutorial misconduct when the State in summation stated: (1) defendant "used" a gun when the evidence only established defendant "brandished" a gun; (2) this was "a case about a business day[,] [i]t's a case about a man who brought a gun to a paper fight"; and (3) "I submit to you that this is a case about a man who tried to intimidate somebody he knew into leaving him alone because he owed money by using a gun. Nothing that the judge will tell you about the law justified that action."

"A prosecutor may be zealous in enforcing the law but he must nevertheless refrain from any conduct lacking in the essentials of fair play, and where his conduct has crossed the line and resulted in foul play, the reversal of the judgment below will be ordered." State v. Wakefield, 190 N.J. 397, 437 (2007) (quoting State v. Siciliano, 21 N.J. 249, 262 (1956), cert. denied, 552 U.S. 1146, 128 S. Ct. 1074, 169 L. Ed. 2d 817 (2008)). "We evaluat[e] the severity of the misconduct and its prejudicial effect on the defendant's right to a fair trial and conclude that prosecutorial misconduct is not grounds for reversal of a criminal conviction unless the conduct was so egregious as to deprive defendant of a fair trial." Ibid. (internal quotations and citations omitted). See also State v. Cook, 330 N.J. Super. 395, 419 (App. Div.), certif. denied, 165 N.J. 486 (2000).

"Prosecutors are afforded considerable leeway in closing arguments as long as their comments are reasonably related to the scope of the evidence presented." State v. Frost, 158 N.J. 76, 82 (1999) (citations omitted). "[A] prosecutor should 'confine [his or her] comments to evidence revealed during the trial and reasonable inferences to be drawn from that evidence.'" State v. Bradshaw, 195 N.J. 493, 510 (2008) (quoting State v. Smith, 167 N.J. 158, 178 (2001)). "So long as the prosecutor's comments are based on the evidence in the case and the reasonable inferences from that evidence, the prosecutor's comments 'will afford no ground for reversal.'" Bradshaw, supra, 195 N.J. at 510 (quoting State v. Johnson, 31 N.J. 489, 510 (1960)).

Defendant's claim that there was prosecutorial misconduct lacks merit. First, the claim that the prosecutor repeatedly said that defendant "used" a gun is supported by the evidence.

The distinction defendant tries to draw between "used" and "brandished" is not persuasive. We find this to be a distinction without a difference. Likewise, the characterization of bringing a gun to a paper fight placed the entire episode in context. The underpinning of the criminal event was the pursuit of a business debt. The characterization of the event as a paper fight was within the bounds of propriety. The prosecutor's concluding statement that nothing in the law justifies this defendant's action was not improper either and represented an appropriate response to the defense claims of defense of property and self-defense. There was no prosecutorial misconduct.

Finally, we reject defendant's argument that there was insufficient evidence to prove beyond a reasonable doubt: 1) that defendant possessed a firearm; and 2) that he intended to use the gun in an unlawful manner. The first argument is premised on the failure to establish that the gun was real; the second, on defendant's claim he was using the gun to defend himself and his property. Defendant concludes that because the jury verdict was against the weight of the evidence, the trial court abused its discretion in denying his motion for a new trial.

Rule 3:20-1 states:

The trial judge on defendant's motion may grant the defendant a new trial if required in the interest of justice . . . . The trial judge shall not, however, set aside the verdict of the jury as against the weight of the evidence unless, having given due regard to the opportunity of the jury to pass upon the credibility of the witnesses, it clearly and convincingly appears that there was a manifest denial of justice under the law.

The trial judge, in ruling on a motion for a new trial, "takes into account, not only tangible factors relative to the proofs as shown by the record, but also appropriate matters of credibility, generally peculiarly within the jury's domain, so-called 'demeanor evidence,' and the intangible 'feel of the case' . . . gained by presiding over the trial." Dolson v. Anastasia, 55 N.J. 2, 6 (1969). See also State v. Sims, 65 N.J. 359, 373-74 (1974); State v. Gaikwad, 349 N.J. Super. 62, 82-83 (App. Div. 2002).

"[A] motion for a new trial is addressed to the sound discretion of the trial judge, and the exercise of that discretion will not be interfered with on appeal unless a clear abuse has been shown." State v. Russo, 333 N.J. Super. 119, 137 (2000). Our scope of review is limited to a determination of "whether the findings made by the trial court could reasonably have been reached on sufficient credible evidence present in the record." Ibid. Moreover, we will "give deference to the trial judge's feel for the case since he presided over [it] . . . and had the opportunity to observe and hear the witnesses as they testified." Ibid.

[State v. Brooks, 366 N.J. Super. 447, 454 (App. Div. 2004).]

Rule 2:10-1 provides in part:

[T]he issue of whether a jury verdict was against the weight of the evidence shall not be cognizable on appeal unless a motion for a new trial on that ground was made in the trial court. The trial court's ruling on such a motion shall not be reversed unless it clearly appears that there was a miscarriage of justice under the law.

"In examining a trial court's denial of a motion for a new trial based on insufficiency of the evidence, an appellate court may not reverse that ruling 'unless it clearly appears that there was a miscarriage of justice under the law.'" State v. Afanador, 134 N.J. 162, 178 (1993) (quoting R. 2:10-1). "The evidence should be sifted to determine whether any trier of fact could rationally have found beyond a reasonable doubt that the essential elements of the crime were present." Ibid. (quotation and citation omitted). "[A] reviewing court should not overturn the findings of a jury merely because the court might have found otherwise if faced with the same evidence." Ibid. (citation omitted). "Faith in the ability of a jury to examine evidence critically and to apply the law impartially serves as a cornerstone of our system of criminal justice." Ibid. "Unless no reasonable jury could have reached such a verdict, a reviewing court must respect a jury's determination." Ibid.

Defendant's argument regarding the nature of the weapon is based on his success on his motion to suppress evidence of the weapon. However, production of the actual weapon is not necessary to sustain a conviction on the charged offense. State v. Gantt, 101 N.J. 573, 589-90 (1986) ("an object's authentic design may be inferred from appearance or based on lay testimony, but in no case is it dependent upon empirical examination of the weapon"). See also State v. Cole, 154 N.J. Super. 138, 145-46 (App. Div. 1977), certif. denied, 78 N.J. 415 (1978) (upholding a conviction for possession of a pistol without a permit where the pistol was never recovered but a witness "heard two clicks," turned around, and saw a gun pointed at his head after defendant "announced a stickup"); State v. Schultheis, 113 N.J. Super. 11, 16 (App. Div.), certif. denied, 58 N.J. 390 (1971) (upholding a conviction for unlawful possession of a weapon where a boy testified he saw a portion of a gun in defendant's holster and believed the gun to be real).

Here, Bay, Hoolahan, and Scotti provided sufficient evidence to conclude that defendant possessed a real gun. Bay testified she handled revolvers and semiautomatics as a police officer in the United States Air Force, saw defendant holding a gun inches from her face, and believed the gun to be similar to the semiautomatic pistol she used in the Air Force. Hoolahan also testified he had previously shot a revolver and a semiautomatic, saw defendant holding a gun, and believed the gun to be a semiautomatic. Both testified that defendant "slid the gun" thereby "chamber[ing] a round" and threatened to "blow [Bay's] F'ing brains out." Scotti testified that defendant admitted "answer[ing] the door with a handgun and [telling Bay] to leave or he would call the police."

There was also sufficient evidence that defendant possessed the gun with a purpose to use it unlawfully against Bay. The court instructed the jury on the fourth element of N.J.S.A. 2C:39-4, that defendant had a purpose to use the gun in a manner that was unlawful, and also instructed the jury on defense of property. The jury's rejection of defendant's defense of property claim, is a matter of credibility, and we will not disturb the jury's verdict where there was sufficient evidence to find defendant had an unlawful intent. The jury's verdict was supported by the evidence.


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