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State of New Jersey v. Afrim Tairi

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


February 16, 2012

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
AFRIM TAIRI, DEFENDANT-APPELLANT.

On appeal from the Superior Court of New Jersey, Criminal Division, Bergen County, Indictment No. 01-06-1503.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted November 9, 2011 - Before Judges Messano, Yannotti and Kennedy.

Following a jury trial, defendant Afrim Tairi was convicted of first-degree kidnapping, N.J.S.A. 2C:13-1(a); second-degree and third-degree receiving stolen property, N.J.S.A. 2C:20-7; two counts of second-degree armed burglary, N.J.S.A. 2C:18-2; three counts of first-degree robbery, N.J.S.A. 2C:15-1; second- degree aggravated assault, N.J.S.A. 2C:12-1(b)(1); two counts of second-degree possession of a firearm for an unlawful purpose, N.J.S.A. 2C:39-4(a); first-degree knowing and purposeful murder of Howard Lewis, N.J.S.A. 2C:11-3(a)(1) and (2); first-degree felony murder of Lewis, N.J.S.A. 2C:11-3(a)(3); second-degree kidnapping, N.J.S.A. 2C:13-1(b); second-degree conspiracy to commit robbery, N.J.S.A. 2C:5-2 and 2C:15-1; and third-degree credit card theft, N.J.S.A. 2C:21-6(c). The judge denied defendant's motion for a new trial, and, after appropriate mergers, sentenced defendant to an aggregate term of life in prison plus eighty years, with a seventy-year period of parole ineligibility. Among the financial penalties imposed by the judge was $30 payable to the Law Enforcement Training and Equipment Fund (LEOTEF), N.J.S.A. 2C:43-33a.

Defendant raises the following arguments on appeal:

POINT ONE

THE COURT BELOW COMMITTED REVERSIBLE ERROR BY PERMITTING THE STATE TO FILL IN THE GAPS IN ITS CASE WITH IMPERMISSIBLE HEARSAY TESTIMONY THEREBY DENYING DEFENDANT AFRIM TAIRI A FAIR TRIAL AND DUE PROCESS OF LAW AS GUARANTEED BY THE FIFTH, SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION.

THE COURT ERRED IN FAILING TO ADEQUATELY GUARD AGAINST THE INCLUSION OF THE TESTIMONY OF MARISOL MELTON AS A WITNESS TO THE INVOLVEMENT OF DEFENDANT TAIRI IN THE CRIMINAL ACTIVITIES FORMING THE BASIS OF THIS CASE.

POINT TWO THE COURT'S CHARGE TO THE JURY WAS SO FLAWED THAT IT MUST RESULT IN A REVERSAL OF THE JURY'S VERDICT.

A. THE COURT ERRED IN ALLOWING THE INCLUSION OF A FLIGHT CHARGE TO THE JURY OVER THE STRONG OBJECTION OF TRIAL COUNSEL THEREBY DENYING DEFENDANT AFRIM TAIRI A FAIR TRIAL AND DUE PROCESS OF LAW AS GUARANTEED BY THE FIFTH, SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION.

B. THE COURT'S BASIS FOR CHARGING THE JURY REGARDING FLIGHT WAS FACTUALLY AND LEGALLY INCORRECT AND GIVEN OVER THE STRONG OBJECTION OF TRIAL COUNSEL THEREBY DENYING DEFENDANT AFRIM TAIRI A FAIR TRIAL AND DUE PROCESS OF LAW AS GUARANTEED BY THE FIFTH, SIXTH, AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION. (Raised below)

C. BY REVERSING ITS PREVIOUS RULING THAT NO CHARGE OF FLIGHT WOULD BE GIVEN; AND THEN RULING THAT A MODIFIED FLIGHT CHARGE WOULD BE GIVEN, THE COURT DENIED DEFENDANT TAIRI THE ABILITY TO ADEQUATELY DEFEND THE ALLEGATIONS AND WAS GIVEN OVER THE STRONG OBJECTION OF TRIAL COUNSEL THEREBY DENYING DEFENDANT AFRIM TAIRI A FAIR TRIAL AND DUE PROCESS OF LAW AS GUARANTEED BY THE FIFTH, SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION. (Raised below)

D. THE COURT'S RULING ON THE INFERENCE OF FLIGHT HAD THE EFFECT OF REMOVING THE ENTIRE BURDEN OF PROOF FROM THE PROSECUTION AND WAS GIVEN OVER THE STRONG OBJECTIONS OF TRIAL COUNSEL THEREBY DENYING DEFENDANT AFRIM TAIRI A FAIR TRIAL AND DUE PROCESS OF LAW AS GUARANTEED BY THE FIFTH, SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION. (Raised below)

E. THE TRIAL COURT IMPROPERLY INSTRUCTED THE JURY ON FLIGHT, THEREBY DEPRIVING DEFENDANT AFRIM TAIRI A FAIR TRIAL AND DUE PROCESS OF LAW AS GUARANTEED BY THE FIFTH, SIXTH AND THE FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION.

F. THE COURT'S JURY INSTRUCTIONS WERE SO FLAWED AS TO CONSTITUTE REVERSIBLE ERROR THEREBY DENYING DEFENDANT AFRIM TAIRI A FAIR TRIAL AND DUE PROCESS OF LAW AS GUARANTEED BY THE FIFTH, SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION.

POINT THREE VIEWING THE STATE'S EVIDENCE IN ITS ENTIRETY, A REASONABLE JURY COULD NOT FIND THE DEFENDANT AFRIM TAIRI GUILTY OF ANY OF THE CHARGES BEYOND A REASONABLE DOUBT THEREBY DENYING DEFENDANT AFRIM TAIRI A FAIR TRIAL AND DUE PROCESS OF LAW AS GUARANTEED BY THE FIFTH, SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION. (Raised below)

POINT FOUR

THE COURT ERRED IN ALLOWING THE VERDICT FOR THE PROSECUTION TO STAND BASED UPON THE EVIDENCE PRESENTED OVER THE STRONG OBJECTION OF TRIAL COUNSEL THEREBY DENYING DEFENDANT AFRIM TAIRI A FAIR TRIAL AND DUE PROCESS OF LAW AS GUARANTEED BY THE FIFTH, SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION. (Raised below)

We have considered these arguments in light of the record and applicable legal standards. We affirm, but remand the matter for entry of a corrected judgment of conviction.

I.

The trial concerned three separate criminal episodes --characterized in defendant's brief as "home invasions" -- that took place in the months of September and November 1995. At trial, which commenced in October 2009, the State relied extensively upon the testimony of Edwin Torres, who had been convicted at trial in 1998 of numerous crimes committed during the three incidents and was serving a sentence of life imprisonment plus seventy years, with a sixty-year period of parole ineligibility. Torres acknowledged testifying against defendant in anticipation of having his sentence reduced to "[l]ife with [thirty] years."

Torres first met defendant in August 1995 at a Paterson pool hall where he was introduced by a friend, Doko, who was defendant's cousin. Doko's father owned Tony's Pizzeria, one block from the pool hall and across the street from the Sealy Mattress Company (Sealy). Torres introduced defendant to Felix DeJesus.

Torres was living in Paterson, with DeJesus's sister, Marisol Melton, and her two children. DeJesus would stay with his sister on occasion, and he and Torres spent much time together. During August and September 1995, defendant was a frequent visitor at the apartment.

The Staten Island Incident

Soon after they met, defendant asked Torres if he "wanted to do some work [and] . . . go rob somebody." Torres and DeJesus agreed to participate, and defendant told them his plan to rob the Theodoulou family, who resided on Staten Island. Defendant was acquainted with the family -- Michael, his wife, Evangelia, and their son, Elenodorous (Lenny) -- because he had worked at the Golden Dove Diner, which they owned and where defendant's brother, Jesse, was the manager.*fn1 Defendant also did some tailoring work for Michael and had been to the home several times, including a visit two weeks before the home invasion.

Torres and DeJesus drove by the family's home two occasions before meeting with defendant at the Golden Dove Diner to plan the robbery. The men decided to use Lenny to gain access to the Theodoulou home. "The plan was to find the kid, get the kid and bring the kid inside the house." Torres and DeJesus drove to the diner and met defendant on the day of the robbery. The three waited for Lenny armed with a Tec-9 and another handgun, duct tape, handcuffs and ski masks.

At approximately 3:00 a.m. on September 16, 1995, Lenny arrived home from a party and parked his car in his neighbor's driveway. Torres claimed that DeJesus grabbed Lenny as he exited the car and forced him back in at gunpoint. Defendant tied him up with duct tape after which the men drove around for a short time. They returned and Torres and DeJesus entered the home with Lenny through the front door, while defendant went around the back. DeJesus was armed, as was defendant.

Torres testified that DeJesus let defendant in the house through the back door. Michael was on the living room couch and Evangelia was ordered down to the living room from upstairs. DeJesus demanded money, but Michael insisted there was no money in the house. The family was taken into the basement where Torres kept watch over them while defendant and DeJesus searched the house. Evangelia's necklace and wedding band were taken from her, along with other jewelry found elsewhere in the house.

DeJesus told the family they were going to take Lenny "for ransom," and Michael claimed he would have the money, "a million dollars or a quarter million" according to Torres, in the morning. Lenny was put in the trunk of the family car, a Mercedes parked in the garage, and DeJesus drove it to Paterson where he met Torres, who drove back separately, at his apartment.

Melton was home, and DeJesus told her to get some breakfast for the two men. As she left the apartment, Melton saw Lenny extricate himself from the trunk of the Mercedes and run off as the car alarm sounded. Torres looked out the window where he saw Lenny running down the street. DeJesus left the apartment and drove the Mercedes around the neighborhood looking for Lenny, while Torres also drove around in DeJesus's BMW. Torres quickly returned to his house, however, frightened over the developments. He and Melton went into the attic and hid as police officers combed the neighborhood.

After his escape and with duct tape still on his body, Lenny ran across the street and asked Thomas Irvolino, who sat in a parked truck, for help, telling Irvolino he was from New York and had been kidnapped. Irvolino was shocked, and pushed Lenny away. Lenny tried to attract attention by ringing doorbells and screaming for help. Almost immediately, police officers Michael Diaz and Robert Guzman of the Paterson Police Department arrived, and Lenny recounted the details of his kidnapping. Together with the officers, Lenny drove around in a vain attempt to find the stolen Mercedes.

Meanwhile, Irvolino saw a Mercedes with New York plates being driven by a Hispanic male who was looking to his left and right down the various side streets. Irvolino suspected this man was searching for Lenny and decided to call the Paterson Police Department. Later that morning, the police recovered the stolen Mercedes.

Shortly after the kidnapping, and even though Lenny had escaped and returned to his home, Torres mailed a note to Michael threatening that Lenny would be kidnapped again unless a ransom was paid. When Michael received the note, Lenny and the rest of the Theodoulou family were in Greece.

Lenny and Evangelia testified in a generally consistent manner about the events, however, their testimony differed from Torres's on critical points. In particular, neither of them ever saw a third man in their home, although both testified they heard a person walking through the house while being held in the basement by the other two men. Even though Torres claimed DeJesus was the first to approach Lenny at gunpoint, Lenny identified Torres, first through a photographic array and later during a line up, as the man who forced him back into his car at the outset of the crime. Michael and Evangelia identified DeJesus from a photographic array and later from a lineup as one of the men in their home on the night in question.

The Englewood Cliffs Incident Sometime in late October of 1995, Torres testified that defendant again approached him and DeJesus in the pool hall with the idea of committing another home invasion. Defendant told them that Mark Urich, the owner of several bagel stores, would be the next target. In preparation, the three men visited Urich's store in Fort Lee and his home in Englewood Cliffs.

On the evening of October 31, 1995, Torres and DeJesus's father drove together to the victim's home, and defendant and DeJesus met them there in a different car. The plan was for defendant and DeJesus, wearing masks and armed with a Tec-9, a second gun and duct tape, to follow Urich into the house upon his return home. Meanwhile, Torres and DeJesus's father were to stay outside and serve as lookouts.

At approximately 2:45 a.m. on November 1, Urich arrived home with a shopping bag filled with the receipts from his stores. He opened his garage from his car, parked and closed the garage door. Before Urich could exit the car, a man with a mask holding a machine-gun-type weapon, who Torres claimed was defendant, appeared at the driver's side window.

The masked man demanded that Urich re-open the garage door. Now out of his car, Urich walked to a door that led into his house that was next to a switch on the wall to open the garage door. Once there, he pushed the garage door button to open the garage door at the same time as he reached down and opened the door to the house an inch or two; this activated the house alarm, which was on a time delay. When the garage door opened, DeJesus rushed in and grabbed Urich. A struggle over defendant's gun ensued, and the bullet clip became dislodged and fell to the floor. When the house alarm began sounding audibly, the two intruders ran out, leaving the injured Urich and the money in the garage. Still in his car, Torres left and drove back to Paterson. Later that night, the four men met outside of Torres's apartment and discussed what had occurred.

Police responded to Urich's house. In the garage, they located the bullets and magazine dislodged from defendant's gun and handcuffs. Expert testimony identified the ammunition as being compatible with a Tec-9. Urich could make no identification of his assailants. Two days later, Urich received two phone calls demanding $250,000 in ransom money, the caller implying that he had information regarding Urich's and his girlfriend's activities. Urich reported this to Detective George Murray of the Englewood Cliffs Police Department.

The Lewis Homicide in Teaneck

The next day, defendant and DeJesus met again at the pool hall. Defendant suggested a third home invasion at the Teaneck residence of Howard Lewis, co-owner of Sealy. Torres had never met Lewis, but a year earlier he had worked for the company for a few days.

At trial, David Hertz, Lewis's cousin who ran the company, testified that Lewis owned twenty-five percent of the company founded by his father, but he had no specific job at the factory. Hertz testified that Howard drove a company car and carried a lot of cash, which he often displayed at the factory.

Torres, DeJesus and defendant conducted surveillance of Lewis. In the afternoon of November 8, 1995, Lewis drove to the Bank of New York branch in Fair Lawn and cashed two checks for $1,600 and $999. He then drove to his home in Teaneck where Torres, DeJesus and defendant were waiting for him to arrive. The plan was for defendant and Torres to follow Lewis into the house with DeJesus acting as lookout.

Defendant and Torres, both wearing masks, followed Lewis into the garage. Defendant was carrying a .22 caliber revolver and ordered Lewis to the floor. When he resisted, Torres punched Lewis and defendant hit him with the gun until he was lying on the ground, dizzy and bleeding. When Lewis continued to struggle, Torres kicked him in the chest and held him down while defendant tied him up tightly with duct tape around his mouth and face. Torres and defendant removed cash and a credit card from Lewis's wallet and a watch from his wrist.

The men left Lewis in the garage and went upstairs to the bedroom of his elderly mother, Lillian. Defendant demanded money, and she pointed to a shoebox from which defendant took cash. Torres stood guard while defendant searched the rest of the house. When the elderly lady asked to see her son, defendant went to the garage, dragged Lewis's now-lifeless body to the bedroom, and Torres explained he was "sleeping."

Defendant left the bedroom a second time and Torres saw him give a credit card to DeJesus outside the house. Defendant told Torres that he gave the card to DeJesus to give to a friend to purchase clothes. Upon defendant's return to the bedroom, he handcuffed Mrs. Lewis to the bed and ripped out the telephone line.

Howard died during the incident. Dr. Maryann Clayton from the Bergen County Medical Examiner's Office testified that Howard suffered multiple injuries in the assault, and his death was caused by "blunt force injury of the face and head, and asphyxia due to aspiration of stomach contents."

DeJesus drove to the Hispanic Multi-purpose Service Center in Paterson, New Jersey, arriving between 3:30 and 4:00 p.m. Dennis Rolon, a receptionist at the Center, testified that DeJesus told him that Alexander Cohen, also known as "Father Nation" and a well-known drug dealer in the neighborhood, wanted Rolon to use the card to purchase various items of clothing. Rolon went to a store in Clifton and, using Lewis's stolen credit card, purchased $750 worth of clothing. As he left Cohen's home, DeJesus arrived.

Torres and defendant left in Lewis's Cadillac, which they later abandoned in Paterson. Defendant gave Torres $500, two necklaces and a watch. Torres claimed he never saw defendant again. Later that night, when Melton saw Torres at their house, he was wearing bloody clothes and cursing that DeJesus had "fucked up" and left him at Howard's home.

The Investigation

Detective Murray noticed similarities between the Englewood Cliffs and Teaneck home invasions. He met with investigators who were investigating Howard's homicide. Additionally, because Lewis's car and the Theodoulou vehicle were both found abandoned in Paterson, officers from Bergen County and members of the Paterson police department began to communicate about the incidents.

In December 1995, Lewis's credit card bill revealed the purchase of clothing on the day of his death. Investigators traced the purchase to Rolon, and, in turn, to DeJesus. On December 21, they searched the home of Jediah Primus, DeJesus's wife, in Maywood and seized the clothing. DeJesus was arrested for stealing Lewis's credit card.

Melton testified that she visited him several times in the Passaic County Jail. DeJesus told her to go to defendant's house on Staten Island to ask him for bail money. Melton and Primus went to defendant's home, but, he was not there so she left her phone number. Defendant called her back, and Melton noticed that he had an accent and a "really bad" stutter. Defendant told Melton to meet him at a Dunkin Donuts on Route 20, where he gave her money for DeJesus's bail. Melton, who had seen defendant on several occasions at her apartment, never saw defendant again.

The second time Melton visited DeJesus in jail, he instructed her to go to his apartment and remove items from the garage, including a holster and ammunition, and to get his and Torres's clothes and burn them. He also told her to give his friend a bag which was hidden under Melton's bed, containing handcuffs, a mask, and a small gun. Pursuant to DeJesus's instructions, Melton pawned necklaces, bracelets and rings that were in the bag at Vincent Pawnbrokers in Paterson. Melton asked Torres for his clothes and threw them and DeJesus's clothing in two separate dumpsters. She threw the items from the garage in the river and gave the bag to DeJesus's friend.

Detective Brian Callanan, from the Bergen County Prosecutor's Office, was the State's final witness. He was assigned to the Lewis murder. Rolon contacted him after receiving a package of rat poison through the mail and agreed to cooperate and gather evidence against DeJesus by wearing a "wire." Although those efforts were unsuccessful, Callanan made contact with Paterson police detective Humberto Cuadrado, who recalled the Theodoulou kidnapping incident and suspected a connection to the Lewis home invasion. Callanan set up surveillances in Paterson from January to July 1996, noticed DeJesus and Torres were often together and further noted physical proximity of Torres's apartment, the Sealy factory, the pizza parlor, the pool hall, and where the Lewis and Theodoulou vehicles were abandoned.

Callanan interviewed Melton on July 10, 1996, and learned that an individual she knew as "Ephraim" gave her money for DeJesus's bail. She described "Ephraim" as "a white male, Eastern European, [with] a stutter." Callanan was able to obtain the proper spelling of defendant's first name, as well as his last name, from Michael Theodoulou, who also confirmed Melton's description. During the six months of surveillance on Torres and DeJesus, Callanan never saw defendant with them.

DeJesus and Torres were arrested for Lewis's murder on July 11, 1996. DeJesus provided a statement of "what he did and who he did it with." Torres also provided a statement. The investigators again interviewed Melton and Primus and obtained the pawn tickets. At the pawn shop, they found various items of jewelry later identified as those stolen during the Theodoulou home invasion.

A warrant for defendant's arrest was issued on July 30, 1996. Callanan's attempts to locate defendant at "every possible address that [he] had," including the Staten Island address on the warrant, were unsuccessful. After a series of objections and sidebars which we discuss below, the judge limited the prosecutor's questions, and Callanan was permitted to testify only that he located defendant on December 1, 2006, and took him into custody.

Defendant did not testify or call any witnesses.

II.

Defendant first contends that Melton provided inadmissible hearsay testimony so prejudicial that reversal is required. The issue arose in the following context.

The prosecutor asked Melton if Torres told her how Lenny got inside the trunk. Melton answered, "He said that they went to their house . . . and they were holding him for ransom."

When the prosecutor inquired who "they" was, Melton responded, "My brother, [Torres], Afrim." Defense counsel objected, and after a sidebar, the judge ordered the statement stricken and instructed the jury:

[T]he last answer that the witness gave[,] you should disregard, so don't consider it, all right. You're not to consider it because I just made a ruling with reference to the admissibility of that statement, so that statement is not admissible, and anything she just said, that last answer is to be stricken, understand that?

Later in Melton's testimony, the prosecutor asked, "And without telling me what [Torres] said, did he tell you who he was with when he went to that house . . . and the man died?" Melton replied, "Yes, with Afrim." The judge chided Melton for not following the prosecutor's direction, proceeded to strike the statement from the record and again give a curative instruction to the jury. Melton identified a photo of a gun as "[t]he gun they used." When the prosecutor asked for clarification, Melton responded, "My brother, [Torres], and Afrim." Defense counsel did not object.

As the Court recently said,

[A] trial is not a perfectly scripted and choreographed theatrical presentation; rather, it is an extemporaneous production whose course is often unpredictable given the vagaries of the human condition. Attorneys will sometimes pose inartfully crafted questions, and even the most precise question may bring an unexpected response from a witness. In any trial, "inadmissible evidence frequently, often unavoidably, comes to the attention of the jury." [State v. Yough, 208 N.J. 385, 397 (2011) (quoting State v. Winter, 96 N.J. 640, 646 (1984)).]

"[W]hen inadmissible evidence erroneously comes before the jury, an appellate court should not order a new trial unless the error was 'clearly capable of producing an unjust result.'" Id. at 397-98 (quoting R. 2:10-2). "For a hearsay error to mandate reversal, '[t]he possibility [of an unjust result] must be real, one sufficient to raise a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached.'" State v. Hightower, 120 N.J. 378, 410 (1990) (quoting State v. Bankston, 63 N.J. 263, 273 (1973)). "Whether testimony . . . is prejudicial and whether a prejudicial remark can be neutralized through a curative instruction or undermines the fairness of a trial are matters 'peculiarly within the competence of the trial judge.'" Yough, supra, 208 N.J. at 397 (quoting Winter, supra, 96 N.J. at 646-47).

Here, the judge immediately gave strong curative instructions to the jury when an objection was made, and, in his final charge, the judge reminded the jury that any evidence stricken could not be considered for any purpose. We presume that the jury "faithfully followed" the judge's instructions.

State v. Miller 205 N.J. 109, 126 (2011). As to the last comment made by Melton, defense counsel lodged no objection and we note that Melton testified after Torres, who had already provided the jury with details regarding the gun and defendant's use of it. In short, Melton's answers were harmless beyond a reasonable doubt. State v. Ingram, 196 N.J. 23, 49 (2008).

III.

A.

In Point Two (A) through (E), defendant contends that the judge erred by charging flight in the first instance and thereafter provided erroneous instructions. Before opening statements, the judge told the prosecutor not to comment on the issue of flight, but also clearly advised defense counsel that the State "may ultimately get a flight charge in this case, but it's got to come out through testimony . . . ." The issue surfaced again during the charge conference immediately preceding Callanan's testimony.

Defense counsel: [M]y concern [is] about [the prosecutor] presenting a witness to say that my client was extradited . . .

I feel it's not only superfluous but . . . prejudicial . . . . Bottom line is there's no indication in this case . . . that my client had an issue with arrest, such as resisting arrest, such as avoiding arrest, had nothing to do with it. . . .

The fact that he's here is indicative . . . that he was charged and arrested.

Judge: [Prosecutor], is there going to be a proffer, is there anybody else in this case that's going to testify as to any issue with respect to [defendant] either knowing or some facts that we could draw an inference from that he knew he was going to be charged?

[I]s there going to be any testimony that . . . somebody came -- some law enforcement person either saw him or saw somebody else while he was still here?

If not, . . . very frankly then you can't even draw an inference of flight.

The judge continued, "I can't have this guy talk about picking [defendant] up in Switzerland."

The prosecutor retorted by noting "this incident occurred 14 years ago," and "[t]he first question out of the jury's mouth is going to be why is he just now being prosecuted." In anticipation of Callanan's testimony, the judge explained:

If I allow . . . testimony . . . that . . . [he] went to Switzerland and picked [defendant] up and there's nothing in the case from this point on that indicates to me you're going to get a flight charge, then basically you've gotten a flight charge without a flight charge.

The prosecutor explained the proffer in detail:

[T]he warrant was issued July 30, 1996. [Defendant] is nowhere to be found. We do have testimony that when . . . DeJesus got arrested on the credit card incident, which is what broke the case, . . . [defendant] was very much aware, that he helped pay the bail . . . .

[W]e have information that [defendant] . . . was never seen again . . . by any of these people involved in the case after that day when he gave the money for the bail. Then we have the warrants in July of '96 [that] were issued. There was indication[] that [defendant] had just recently left to go to Macedonia.

The prosecutor then explained various details which, apparently based upon defendant's request and the judge's ruling, would not be admitted, including defendant's illegal entry into the United States, his fraudulent application for a passport in 1995, his arrest and conviction in Macedonia of unrelated crimes after these criminal events, his resistance to extradition, and his subsequent arrest in Switzerland from where he was extradited.*fn2

The judge concluded he would not permit testimony that defendant was "picked up in Switzerland." Nonetheless, as the charge conference concluded, the judge noted Callanan's impending testimony, and advised defense counsel to "bear . . . in mind" that even in the absence of direct evidence, a flight charge might still be appropriate "if you can . . . draw an inference."

During Callanan's testimony, defense counsel objected when the prosecutor attempted to elicit details regarding defendant's arrest. During an extended sidebar conference, the judge concluded that because there was testimony that defendant helped post bail for DeJesus, "[t]he State can get an inference . . . that [defendant] knew or he surmised that he himself may have been charged." However, the judge placed the following restrictions on Callanan's testimony:

He can testify as to the fact that he arrested [defendant]. He can testify when he arrested him. . . . [S]aying that he was arrested in Switzerland . . . connotes something more than needs to be connoted in this case and its prejudicial . . . . I don't think it's necessarily relevant, either, . . . but the fact he was arrested [on] whatever the date . . . is relevant, so I'm going to allow that.

After Callanan completed his testimony, defendant again objected to any flight charge. The judge concluded he would "give the flight charge because . . . it's in the case based upon the circumstances of [defendant] posting the bail after these guys were caught with the credit card, which basically [cracked] the case."

B.

"A jury reasonably may infer a defendant's consciousness of guilt from an attempt to avoid accusation." State v. Mann, 132 N.J. 410, 419 (1993). However, mere departure is distinguishable from "flight."

For departure to take on the legal significance of flight, there must be circumstances present and unexplained which, in conjunction with the leaving, reasonably justify an inference that it was done with a consciousness of guilt and pursuant to an effort to avoid an accusation based on that guilt. [State v. Sullivan, 43 N.J. 209, 238-39 (1964), cert. denied, 382 U.S. 990, 86 S.Ct. 564, 15 L.Ed.2d 477 (1966).]

The Supreme Court, expressly referencing our model jury charge on the issue, recently said, "[E]vidence of flight is probative if the flight is accompanied by an intent to avoid detection or apprehension," Ingram, supra, 196 N.J. at 46. "[D]eparture to avoid detection or apprehension" is "[t]he logically required tipping point." Id. at 47.

The propriety of admitting the evidence and delivering the instruction "depends upon the degree of confidence with which four inferences can be drawn: (1) from the defendant's behavior to flight; (2) from flight to consciousness of guilt; (3) from consciousness of guilt to consciousness of guilt concerning the crime charged; and (4) from consciousness of guilt concerning the crime charged to actual guilt of the crime charged." [State v. Latney, 415 N.J. Super. 169, 176 (App. Div. 2010) (emphasis omitted) (quoting Mann, supra, 132 N.J. at 420).]

Whether there is sufficient evidence in the record to support a flight charge is a decision left to the trial judge's discretion. State v. Long, 119 N.J. 439, 499 (1990).

Defendant contends that there was insufficient evidence to support a flight charge because the State failed to prove "a time line" for his departure and an inference regarding consciousness of guilt could not be drawn simply because he helped post DeJesus's bail. We disagree and conclude the judge did not abuse his discretion in permitting admission of the evidence and providing the flight instruction.

The judge acknowledged the facts presented a "close call." He concluded that Melton's testimony, that she received instructions from DeJesus to contact defendant, she contacted defendant, and he provided her with bail money in December 1995, permitted an inference that defendant knew he was going to be charged. The judge further considered Callanan's testimony. As noted, from January to July 1996, the detective set up surveillances of DeJesus and Torres in Paterson, but never saw defendant, although Melton testified that defendant frequently picked up the two men and met with them in the months before. Torres never saw defendant after the Lewis homicide, and Melton never saw defendant again after receiving the bail money in December 1995. When a warrant was issued for defendant's arrest on July 30, 1996, the police made "numerous efforts" to find him, including "checking out" his last known address in Staten Island. He was not arrested until December 1, 2006.*fn3 This evidence was sufficient to permit the jury to infer that defendant fled to avoid apprehension on these charges.*fn4

We also reject the argument defendant raises in Point Two

(C), i.e., the judge "revers[ed] [his] previous ruling that no charge of flight would be given." As we fully set forth above, the record reveals the judge's careful consideration of the issue in light of the testimony as it was adduced. In any event, the judge was obligated to provide necessary instructions regardless of the trial's posture. See, e.g., State v. Rovito, 99 N.J. 581, 588 (1985) (finding no error where the trial court decided to give an additional jury charge after the completion of summations).

In Point II(E), defendant argues that the flight charge as given was erroneous. Because defendant never objected at trial, we review the contention for plain error. See R. 2:10-2; State v. Brown, 190 N.J. 144, 160 (2007). In the context of a jury charge, plain error is a "legal impropriety in the charge prejudicially affecting the substantial rights of the defendant and sufficiently grievous to justify notice by the reviewing court and to convince the court that of itself the error possessed a clear capacity to bring about an unjust result." State v. Nero, 195 N.J. 397, 407 (2008) (emphasis added) (quoting State v. Chapland, 187 N.J. 275, 289 (2006) (quoting State v. Hock, 54 N.J. 526 (1969), certif. denied, 399 U.S. 930, 90 S. Ct. 2254, 26 L. Ed. 2d 797 (1970))).

The judge provided the following instructions:

There's been some testimony in the case from which you may infer that Mr. Tairi left his last-known address sometime after the alleged commission of the crimes herein.

Now the question of whether the defendant fled after the commission of the crimes is another question of fact for you to determine. Mere departure from a place where a crime has been committed does not question [sic] . . . flight.

If you find that defendant, fearing an accusation or arrest would be made against him in the charges involved in the indictment, . . . took refuge in flight for the purpose of evading the accusation or arrest in these charges, then you may consider such flight in connection with all of the other evidence in this case as an indication or proof of consciousness of guilt.

Flight may only be considered as evidence of consciousness of guilt if you should determine that the defendant's purposes in leaving was to evade accusation or arrest for the offense charged in the indictment based on the evidence presented in this case.

The arrest warrant in this case as proffered by the State, of course that's for you to find, was allegedly issued July 30th, '96. Testimony was presented, again for you to decided whether you accept it or not accept it, that defendant was not arrested until December 1, '06.

You may draw an inference from the facts as you find exist. Again, you're the fact finder. I'm not. Neither is the prosecutor or defense counsel. . . . [Y]ou may draw an inference . . . from the facts as you find exist that the failure of the defendant to remain in the area of his last-known address was for the purpose to evade the arrest or accusations in this case.

If you find that based upon the facts presented in this case such an inference is reasonable to be drawn, you can draw it based upon your interpretation of the evidence presented.

It's up to you draw [sic] the inference, if you decide to draw one. If you do so find that this inference exists and is reasonable, then you may consider such flight from the defendant's last-known address as an indication of proof of consciousness of guilt.

On the other hand, you may also find that such an inference is not reasonable under the facts . . . and testimony presented and not find that the failure of the defendant to remain in the area of his last-known address was for the purpose of evading the arrest or accusation in this matter and therefore not find consciousness of guilt on his part.

If after consideration of all the evidence you find the defendant, fearing that an accusation or arrest will be made against him on the charges involved in the indictment, took refuge in flight for the purpose of evading an [accusation] or arrest, then you may consider such flight in connection with all of the other evidence in this case as an indication or proof of consciousness of guilt.

It's for you as judges of the facts to decide whether or not evidence of flight shows consciousness of guilt and the weight to be given to such evidence in light of all of the other evidence in this case, and that's for you to decide, no one else.

These instructions largely tracked Model Jury Charge (Criminal), "Flight," (revised 4/24/00), with two exceptions. As highlighted above, the judge used the phrase "sometime after" instead of the Model Charge's phrase, "shortly after." Additionally, the second sentence of the Model Charge provides, "The defendant denies any flight, (or, the defendant denies that the acts constituted flight)." The judge omitted this sentence entirely.

The first modification was simply an attempt to mold the Model Charge to the facts of the case. See, e.g., State v. Green, 318 N.J. Super. 361, 376 (App. Div. 1999) (noting "[t]he Model Jury Charges are only guidelines, and a trial judge must modify [them] when necessary . . . [to] conform[] with the facts, circumstances, and law that apply to the facts being tried"), aff'd, 163 N.J. 140 (2000). Defendant did not object, and we find no error.

As to the omission of the sentence regarding defendant's denial, we have said that where a defendant offers an explanation for his flight, the judge must "clearly apprise the jury that if they credited the explanation . . . , they should not draw any inference relative to guilt against such defendant." State v. Leak, 128 N.J. Super. 212, 217 (App. Div.), certif. denied, 65 N.J. 565 (1974).*fn5 However, defendant offered no explanation of his departure from his home on Staten Island or the area in general.

Nonetheless, omitting the second sentence was error. Telling the jury that a defendant denies the allegation that he fled is equivalent to the general instructions provided at the outset of the trial, i.e., "The defendant has pleaded not guilty to the charge(s)." See Model Jury Charge (Criminal), "Instructions after jury is sworn," (Revised 6/4/07). However, the omission of that single sentence does not require reversal.

In the balance of his charge to the jury, the judge repeatedly stated that the issue was a "question of fact" for the jury to determine, that "[m]ere departure from a place" was not flight, that an inference of flight could only be drawn if "reasonable under the facts," and that if the jury found the inference was "not reasonable under the facts" it should not conclude that defendant "fail[ed] . . . to remain in the area . . . for the purpose of evading the arrest or accusation in this matter and therefore not find consciousness of guilt on his part."

Defense counsel never addressed the issue in summation and the prosecutor's reference to the flight charge in her summation was fleeting. Defense counsel never objected to the charge, thus, depriving the judge of the opportunity to clarify the obvious inadvertent omission of the Model Charge's second sentence. The charge as given provided the jury with "sufficient guidance" and did not create any "risk that the . . . ultimate determination of guilt or innocence [was] based on speculation, misunderstanding, or confusion." State v. Olivio, 123 N.J. 550, 567-68 (1991). We find no basis to reverse on this ground.

C.

In Point II(F), defendant argues that the judge erred in charging the jury on identification because: (1) certain portions of the charge were misleading; and (2) the charge referenced out-of-court identifications when there was no such testimony. Again, there was no objection to the charge when given.

Defendant correctly notes that during the charge, which roughly tracked Model Jury Charge (Criminal), "Identification: in-court and out-of-court identifications," (Revised 0/4/07), the judge referred at several points to "witnesses" who identified defendant in-court and out-of-court as "the person who is allegedly involved in . . . committing the offenses." Defendant argues that this misled the jury into believing witnesses other than Torres identified him. However, the State acknowledged none of the victims could identify defendant and that Torres was the sole witness who identified defendant as an actual participant in the crimes. The jury clearly understood this.

The judge should not have included any charge on out-of-court identifications because, while the Theodoulouses identified DeJesus and Torres, no witness identified defendant during an out-of-court identification procedure. We have said that when an instruction is given that "correctly states the law, but is inapplicable to the facts or issues before the court . . . prejudice must be shown in order to constitute it reversible error." State v. Moore, 330 N.J. Super. 535, 542 (App. Div.) (quoting State v. Thomas, 76 N.J. 344, 365 (1978)), certif. denied, 165 N.J. 531 (2000).

Defendant never objected to the charge, and, as noted, the State clearly recognized the limits of its direct proof, an issue highlighted extensively by defense counsel in his summation. The errant inclusion of the charge did not prejudice defendant's right to a fair trial.

IV.

In Points III and IV, defendant argues that the evidence was insufficient to prove his guilt beyond a reasonable doubt, and the jury's verdict was against the weight of the evidence. We disagree.

When deciding a motion for acquittal based upon the insufficiency of the State's evidence, the trial court must apply the time-honored standard set forth in State v. Reyes, 50 N.J. 454, 459 (1967):

[W]hether[] viewing the . . . evidence in its entirety, be that evidence direct or circumstantial, and giving the State the benefit of all its favorable testimony as well as all of the favorable inferences which reasonably could be drawn therefrom, a reasonable jury could find guilt of the charge beyond a reasonable doubt.

We review the decision of the trial judge de novo applying the same standard. State v. Bunch, 180 N.J. 534, 549 (2004).

A judge may grant a defendant's motion for a new trial "if required in the interest of justice." R. 3:20-1. The judge, however, "shall not . . . 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. Ibid. "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." R. 2:10-1; see, also State v. Perez, 177 N.J. 540, 555 (2003).

Applying these standards, defendant's arguments lack sufficient merit to warrant discussion in this opinion. R. 2:11-3(e)(2). We add only the following.

Defendant contends that there was no physical evidence linking him to the crimes and that Torres's testimony was so rife with inconsistencies and contradicted by other witnesses as to be unworthy of belief. We have said, "[i]t is within the sole and exclusive province of the jury to determine the credibility of the testimony of a witness." State v. Vandeweaghe, 351 N.J. Super. 467, 481 (App. Div. 2002), aff'd, 177 N.J. 229 (2003). Moreover, Torres's testimony was corroborated in many details by the victims of the crimes, other physical evidence, and by the testimony of Melton, which circumstantially established defendant's active involvement in the criminal enterprise.

In short, the testimony taken as a whole was sufficient to establish defendant's guilt of the charges beyond a reasonable doubt, and the judge properly denied his motion to set aside the jury's verdict.

V.

The State concedes that imposition of the LEOTEF penalty was incorrect, since that law became effective in 1997, after these crimes were committed. N.J.S.A. 2C:43-3.3a. Accordingly, the matter is remanded for the entry of an amended judgment of conviction vacating the imposition of the LEOTEF penalty. In all other respects, we affirm.


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