On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 08-05-0781.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 30, 2011 -
Before Judges Axelrad, Sapp-Peterson and Ostrer.
Defendant was convicted by a jury on all counts of a four-count indictment charging him with second-degree aggravated arson, N.J.S.A. 2C:17-1a, third-degree criminal mischief, N.J.S.A. 2C:17-3a(1), third-degree burglary, N.J.S.A. 2C:18-2, and third-degree theft by unlawful taking, N.J.S.A. 2C:20-3a. Defendant was sentenced to a total of ten years incarceration, with a parole ineligibility period of eight-and-a-half years subject to the No Early Release Act (NERA).
Defendant appeals his conviction and sentence based on numerous trial errors. We affirm.
We summarize the salient facts elicited at the five-day trial, and present additional facts and procedural history in the context of our legal discussion below.
On February 6, 2008, around 5:30 a.m., Jamesburg Police Officer Jason Muller discovered a pickup truck on fire near an abandoned factory on High Street in Helmetta. Officer Muller ran the license plate and determined the truck belonged to Lance Air Conditioning and Heating (Lance AC), a local business, located nearby on Main Street. Arson investigators ultimately determined that the truck had been set on fire with accelerant, specifically, gasoline.
When Officer Muller arrived at Lance AC, he observed a broken lock. He contacted both the business owner Robert Lance and Detective Kevin Wilson of the Jamesburg Police Department. Lance confirmed the locks were cut, tools and copper tubing were missing from the yard, trucks were broken into, and a truck was missing. According to Lance, the missing copper tubes were worth about $400. The truck, which was found burnt and destroyed at an abandoned factory, was valued at $5,492.
That morning, Helmetta Police Officer Howard Messler, Jr. noticed a "white substance" on the streets through town while patrolling the area. The substance created a trail from Lance AC into a condominium development. The trail led to a cul-desac on Meadow Court where a large puddle was created, and then went out of Meadow Court and ultimately led to another puddle near a home on Tanglewood Court where a 1978 black Ford van was parked. Police later concluded the trail of white substance was hydraulic fluid that dripped from a hydraulic line of the burned truck. The truck had been attached to a snow plow, which was found at the Lance business with the line removed. The cul-desac on Meadow Court was a short walk along a path across railroad tracks to Main Street and Lance AC.
Det. Wilson was directed to the home where the black van was parked. He encountered William Marshall, the father of defendant's girlfriend and owner of the home. Det. Wilson determined that Marshall owned the van. At a suppression hearing and at trial, Marshall and Det. Wilson both testified that Marshall was standing outside when the police arrived. Det. Wilson explained that they were investigating the burglary, and the white fluid trail had led to his van. Marshall then volunteered to open the doors of the van. He explained the van was unregistered and used for storage. The keys to the van were kept on a hook in his home, accessible to anyone in the home.
Once the van door was open, Det. Wilson and Marshall observed spools of copper, and plumbing fixtures that Marshall explained did not belong to him. Marshall later signed a consent form permitting a search inside the van. Ultimately, police recovered from the van buckets of copper fittings, tools, bolt cutters, a battery, and a drill with the word "Lance" on the drill battery. Lance identified the items as his company's property.
Det. Wilson testified at the suppression hearing, (but did not repeat at trial), that when Marshall opened the van doors and saw the items inside, he exclaimed, "Holy shit. T.J. [defendant, Thomas J. Adamcewicz] is at it again." Marshall invited Det. Wilson into his home, and to the living room where defendant had been sleeping on a mattress on the floor.
After reading him his Miranda*fn1 warning and obtaining his signature on the waiver form, police asked him whether he was home that night, and defendant answered that he was home sleeping all night. Police told defendant to get dressed. Officer Muller noticed a white substance on the black jeans defendant put on. Police arrested defendant and transported him to headquarters, where they seized the pants.
After receiving a call from Marshall later that day, Det. Wilson returned to the home and obtained written consent to search the house and storage closet or shed; he recovered a pair of boots, a blue t-shirt, and a stained, damp blue sweatshirt from the shed. Police also seized a black sweatshirt with suspected hydraulic fluid on it in plain view on a clothes hamper.
Brandy Brown, Marshall's daughter and sister of defendant's girlfriend, was also at the home in the early morning of February 6, 2008. Brown testified she had been awakened by her infant at around 3:30 a.m., and saw defendant climb over the balcony at 3:45 a.m. Brown gave Det. Wilson some clothes out of defendant's hamper, including a sweatshirt and a shirt she said he was wearing when he returned.
Det. Wilson testified the clothes were sent to the State lab, revealing "traces of accelerant which is gasoline" on the blue t-shirt and sweatshirt found in the shed. Although Det. Wilson testified he believed the substance on the pants was hydraulic fluid, they were never tested for the presence of hydraulic fluid. The pants, however, did test negative for gasoline or accelerants. Likewise, the stained grey t-shirt that Brandy Brown gave to the police and the stained black sweatshirt the officer seized were not tested for hydraulic fluid, but tested negative for gasoline or accelerants. The forensic scientist from the State Police who conducted the test of the clothing testified that in his thirty years experience, he did not recall ever testing for the presence of hydraulic fluid as its presence was not detectible using the tests the lab performed. He opined that it would be possible, after conducting "a little research," to formulate a test for the substance, but no one asked him to do so.
After a two-day hearing, Judge Barbara C. Stolte denied defendant's motion to suppress the items seized from the van and the home, and the pants he wore to the police station. Judge Stolte denied the motion on October 1, 2009, finding there was valid consent for the searches of the van and home, and a proper search incident to a lawful arrest.
Defendant was tried before Judge Joseph Paone and a jury. The State presented the testimony of the following witnesses and experts: Muller, Wilson, Lance, Marshall, Brown, Helmetta Police Officer Howard Messler, Jr., Middlesex County Prosecutor Investigator Todd O'Malley, forensic science expert Thomas Lesniak, arson investigations expert James Mennuti, and fingerprint analysis expert Ronald Rinaldi. The defense did not present any witnesses. The jury convicted defendant of all counts in the indictment.
The State moved for an extended term as a persistent offender, N.J.S.A. 2C:44-3a, and asked the court to impose a fifteen-year term on the aggravated arson, consecutive to the sentences for theft and burglary. Defense counsel had argued for a sentence of five years. The court declined to impose an extended term. On April 29, 2010, Judge Paone sentenced defendant to ten years imprisonment on the aggravated arson count, with eight-and-a-half years of parole ineligibility subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. The judge merged the criminal mischief conviction under count two into the aggravated arson conviction under count one, and imposed sentences of five years imprisonment each for burglary and theft by unlawful taking under counts three and four, to run concurrent with the ten-year sentence for aggravated arson. The sentence was also to run consecutive to a three-year term defendant was serving after he was resentenced following a probation violation.
Defendant appealed. He raises the following points on appeal.
DEFENDANT'S RIGHT TO A FAIR TRIAL WAS INFRINGED BECAUSE THE JURY HEARD DURING THE PROSECUTION'S CASE-IN-CHIEF THAT DEFENDANT ...