September 24, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
AGNES M. SAGRATI DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 06-06-0459.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 12, 2012
Before Judges Fuentes and Grall.
A jury found defendant Agnes M. Sagrati guilty of trafficking in personal identifying information, a crime of the fourth degree. N.J.S.A. 2C:21-17.3. She was sentenced to two year's probation and ordered to pay a $25 monthly supervision fee and appropriate fines, penalties and assessments.
In November 2005, defendant's sister-in-law, Ann Armahizer, searched the Internet for her name and discovered it posted on several websites along with her address, date of birth, social security number, children's names, bank account information, place of employment, pay stubs and her likely passwords. One of the postings was on the "littlebluelight" website, a site which provided directions on "how to hack into people's bank accounts."
Armahizer suspected her husband Joe, who is defendant's brother, or defendant was responsible. At that time, Armahizer and Joe were separated and involved in divorce and custody litigation. Joe was living with defendant, and there were orders in effect that restrained Joe from contacting Armahizer and Armahizer from contacting either Joe or defendant.
As required by court rule, Armahizer had given Joe a case information statement, recent pay stubs and account statements. The website postings included her employee identification number, which appeared on her pay stubs. Outside of work, she did not use that number to identify herself. In addition, the website had a description of an accident Armahizer had at home, which she had not shared with anyone other than Joe and members of his family; defendant had frequently teased Armahizer about that incident.
Armahizer printed what she found on the "littlebluelight" website and gave it to the police. She also told the police that she believed defendant was collecting disability benefits from social security without reporting her income earned through selling items on E-bay.
Detectives from the prosecutor's office went to defendant's home to investigate. Defendant agreed to go to the prosecutor's office with them, and after waiving her Miranda rights*fn1 and a preliminary interview, defendant agreed to give a tape-recorded statement.
In her recorded statement, which the State introduced at trial, defendant responded to questions posed. She had "surf[ed]" the Internet and found "some guy who said that he would jam up [Armahizer's] computer so she couldn't mess with [defendant]." Defendant had looked for someone who would do that because Armahizer had put messages on Yahoo calling defendant "fat whale" and "things like that." In addition, defendant was upset about how the "nasty" separation and divorce was going and wanted to "get even."
Defendant e-mailed the man the description of Armahizer's accident and "all of" the information that she had about Armahizer. Defendant was not sure whether she had sent all of the information that appeared on the website. Nor was she certain whether she had obtained the information that she did send from documents Joe had or from documents Armahizer had given her on prior occasions.
Defendant did not know how the information she provided would help the man jam Armahizer's computer. She acknowledged that he had not asked her for Armahizer's social security number or account information, and she said that she had told him she did not want to know what he did. She just wanted him to "jam up [Armahizer's] computer."
The State's theory of the case was that defendant had access to Armahizer's personal information and posted it. The theory of the defense was that Armahizer, not defendant, did the postings in order to create additional problems for Joe and defendant.
During his cross-examination of Armahizer, defense counsel elicited several admissions to support that theory. Armahizer acknowledged that there was a protracted history of animus between her and defendant's family; that she "probably" had told the detectives that defendant was fraudulently collecting social security disability benefits; and that she was "very upset" that Joe invited defendant to a weekend gathering for her family members before he and Armahizer separated.
Defendant also testified and provided information to cast doubt on the accuracy and reliability of her tape-recorded statement. For instance, she testified that she had not sought help to "jam" Armahizer's computer but only to block Armahizer from harassing her. She explained that when she made the recorded statement, she was simply repeating what the detective had told her to say prior to the recording session. She said what the detective wanted her to say because he had threatened her by mentioning Armahizer's accusation of disability-benefit fraud and suggesting that Joe was a fugitive and she was harboring him.
In addition, defendant testified that she was not thinking clearly when she gave the statement. She was taking eighteen or nineteen different medications that her doctors had prescribed for her serious coronary condition, hardening of the arteries, insomnia and anxiety. The medication for anxiety made her "kind of weird" - light-headed and unable to handle stress very well.
The jurors apparently credited defendant's recorded statement and disbelieved her trial testimony.
Defendant presents these arguments on appeal:
I. THE DEFENDANT'S RIGHT TO PRESENT A DEFENSE AND RIGHT TO CONFRONT WITNESSES AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I, PAR. 10 OF THE NEW JERSEY CONSTITUTION WERE VIOLATED BY THE IMPROPER EXCLUSION OF HIGHLY RELEVANT EVIDENCE OF BIAS TO IMPEACH THE KEY STATE'S WITNESS.
II. THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I, PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE PROSECUTOR'S ARGUMENT THAT THE JURORS SHOULD DRAW AN ADVERSE INFERENCE FROM THE DEFENDANT'S FAILURE TO CALL HER PHYSICIANS AS WITNESSES ON HER BEHALF.
III. THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I, PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED WHEN THE PROSECUTOR INJECTED HER PERSONAL OPINION INTO THE CASE.
(Not Raised Below).
IV. THE DEFENDANT'S MOTION FOR JUDGMENT OF ACQUITTAL SHOULD HAVE BEEN GRANTED.
V. THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I, PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE TRIAL COURT'S DENIAL OF THE DEFENDANT'S MOTIONS TO COMPEL DISCOVERY.
VI. THE STATE FAILED TO PROVE BEYOND A REASONABLE DOUBT THAT THE DEFENDANT'S STATEMENT WAS GIVEN VOLUNTARILY.
VII. THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I, PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE ADMISSION OF HEARSAY EVIDENCE WITHOUT A SHOWING THAT THE HEARSAY DECLARANT HAD PERSONAL KNOWLEDGE OF THE FACTS. (Not Raised Below).
The judge did not err in denying defendant's motion for a judgment of acquittal. In reviewing that determination, we apply the same standard as the trial court. State v. Reyes, 50 N.J. 454, 459 (1967). The motion must be denied when the evidence and reasonable inferences, viewed in the light most favorable to the State, would permit a jury to find each element of the crime beyond a reasonable doubt. Id. at 458; see also Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S. Ct. 2781, 2788-89, 61 L. Ed. 2d 560, 573 (1979); State v. Wilder, 193 N.J. 398, 406 (2008). "'[T]here are no legal rules as to what inferences may be drawn. The question is one of logic and common sense.'" State v. Samuels, 189 N.J. 236, 246 (2007) (quoting State v. Powell, 84 N.J. 305, 314 (1980)). Where there is no direct testimony or evidence, the fact-finder may rely solely on inferences available from the proofs. See, e.g., ibid.; Powell, supra, 84 N.J. at 314. Moreover, jurors are not required to accept the testimony of any witness; they are expected to evaluate the veracity of testimony in light of the proofs. State v. Stull, 403 N.J. Super. 501, 506 (App. Div. 2008).
To convict defendant of this crime, the State was required to prove that she "knowingly distribute[d], manufacture[d] or possesse[d] any item containing personal identifying information pertaining to another person, without that person's authorization, and with knowledge that [she was] facilitating a fraud or injury to be perpetrated by anyone . . . ." N.J.S.A. 2C:21-17.3.
To obtain a conviction, the State need not prove that the victim was injured or defrauded. The State need only prove that defendant engaged in the prohibited conduct and was aware of the nature of that conduct - i.e., that she was distributing Armahizer's personal information without her permission - and that defendant was aware of a high probability of the material circumstance - that the unauthorized disclosure would facilitate anyone's injury or fraud of Armahizer. See N.J.S.A. 2C:2-2b(2) (defining knowingly with respect to conduct and material circumstances). Under New Jersey law, awareness of a "high probability" of a material circumstance suffices to establish knowledge. Where the defendant knows there is a high probability of material circumstances, the defendant cannot escape by claiming ignorance of those circumstances. See 2
Final Report of N.J. Criminal Law Revision Commission, commentary to § 2:2-2 at 44 (1971) (noting that the section defines knowledge to include "willful blindness"); cf. In re Johnson, 105 N.J. 249, 260 (1987) (holding that an attorney may not avoid responsibility for misappropriation by intentionally avoiding knowledge of what is going on).
When defendant's tape-recorded statement is viewed in the light most favorable to the State and the State is given the benefit of all the reasonable and favorable inferences available from that statement, it is clear that the judge properly denied defendant's motion for acquittal. After all, defendant admitted that she sought out someone who would injure Armahizer by jamming her computer and then sent that person Armahizer's personal information.
Applying common sense, the jurors could reasonably infer defendant was aware of a high probability that she would be facilitating the actions of anyone who wanted to injure or defraud Armahizer when she disseminated information that included Armahizer's name, address, date of birth and social security number. The jurors were not required to accept defendant's denial of any understanding of what was likely to occur. Indeed, on this evidence the jurors could accept defendant's admission to dissemination of all of the personal information she had about Armahizer but reject her claim that she did not post the information on the websites. After all, she admitted her desire to get even with Armahizer, having access to Joe's papers and e-mailing the account of Armahizer's accident.
Defendant contends that we must disregard defendant's recorded statement, but we reject her arguments. Substantially for the reasons the trial judge set forth in the oral decision he rendered on January 22, 2009, we conclude that the State established that she knowingly and voluntarily waived her right to remain silent. The arguments she presents in Point VI to establish that her statement was involuntary have insufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We also reject defendant's claim that her recorded statement was inadmissible hearsay. Contrary to the argument defendant presents in Point VII, defendant's recorded statement was admissible pursuant to N.J.R.E. 803(b). Any uncertainty she expressed about what information she disseminated and where she got it did not require exclusion of this admissible hearsay pursuant to N.J.R.E. 602. For all of the foregoing reasons, the judge properly denied defendant's motion for judgment of acquittal.
In Points I and V of her brief, defendant contends that the trial judge impermissibly limited her rights to present a defense and cross-examine the witnesses against her. She bases these claims on the judge's denial of her motions to compel discovery and his rulings limiting disclosure of the details of the family court litigation between Armahizer and Joe, a civil action defendant filed against Armahizer and a report of child abuse that Armahizer filed against Joe.
These rulings are discretionary. Determinations made on applications for discovery not mandated by Rule 3:13-3 are reviewed for abuse of discretion. See State in Interest of W.C., 85 N.J. 218, 232 (1981) (describing the factors a judge should consider in ruling on a defendant's request to compel a line-up). Similarly, judges have discretion to limit cross-examination and the presentation of admissible evidence, see N.J.R.E. 611; N.J.R.E. 403, and a trial judge's rulings on those matters are not disturbed unless "'clear error and prejudice are shown.'" State v. Martini, 131 N.J. 176, 263-64 (1993) (quoting State v. Murray, 240 N.J. Super. 378, 394 (App. Div.), certif. denied, 122 N.J. 334 (1990)) (cross-examination); see also State v. Herrerra, 211 N.J. 308, 342-43 (2012) (affirming the denial of a request for the arresting officer's personnel file after considering its limited probative value, the risk of confusing the issues and wasting time and the defendant's inability to show prejudice given the other evidence); State v. Spivey, 179 N.J. 229, 242 (2004) (affirming the exclusion of collateral evidence of an officer's prior misconduct based on the judge's balancing of probative and prejudicial value pursuant to N.J.R.E. 403).
Defendant claims the judge erred in denying her access to an investigatory file created in response to a complaint she filed against the detectives who came to her home and interviewed her. Arguably, this evidence was discoverable pursuant to Rule 3:13-3(c), but the trial judge made his ruling after reviewing the file in camera. He found nothing that would be useful to the defense. Because neither party has filed the documents with this court under seal, we are unable to review the determination. Society Hill Condo. Ass'n, Inc. v. Society Hill Assocs., 347 N.J. Super. 163, 177-78 (App. Div. 2002). While the State should have provided them, Seacoast Builders Corp. v. Rutgers, 358 N.J. Super. 524, 547 (App. Div. 2003), defendant could have moved for an order compelling the State to do that, R. 2:5-5. Having no basis for determining that the judge erred, we decline to address the issue. Society Hill, supra, 347 N.J. Super. at 177-78. It is worth noting that there is no reason for concern that defendant was prejudiced by the non-disclosure of the file on her complaint because defendant had two opportunities to question the detectives about their interaction with her - at the Miranda hearing and at trial. In fact, at the suppression hearing, one of the detectives was questioned about the threats defendant alleged he made, and he admitted that he mentioned the Florida warrant for Joe's arrest and Armahizer's allegation of disability fraud.
Defendant also contends that the judge erred in denying her request to review the detectives' personnel files. The judge determined that defendant failed to advance a factual predicate demonstrating that her review of those files would produce evidence useful to the defense. That determination, which is supported by the record, is consistent with State v. Harris, 316 N.J. Super. 384, 397-98 (App. Div. 1998), and not an abuse of discretion.
Defendant's final objection is to the denial of her motion to compel production of records of the Division of Youth and Family Services (DYFS) - specifically, the file on the investigation of the allegation of child abuse Armahizer made against Joe. Alleging that the file would show the accusation was false, defendant sought the file to impeach Armahizer and to establish her bias against defendant and Joe.
Defendant now acknowledges that the report, even if false, is not admissible to impeach Armahizer's credibility pursuant to N.J.R.E. 608(b). We agree. As the trial judge concluded, the crimes were dissimilar and a mini-trial on this collateral issue would have confused the issues and resulted in an undue waste of time. This determination is consistent with State v. Guenther, 181 N.J. 129, 154-57 (2004), and not an abuse of discretion.
Defendant's contention is that the DYFS file was important because it would have shown Armahizer's bias and motive to accuse defendant of this crime. Even if we were to conclude that the judge should have permitted the discovery for that reason, given Armahizer's admission to a protracted history of animosity between her, defendant and Joe, and the evidence that Armahizer reported defendant for fraud related to disability benefits, we are confident that additional evidence of her hostility and bias toward Joe would not have changed the result of this trial. Accordingly, defendant is not entitled to reversal on this ground. R. 2:10-2.
Armahizer's admissions about the protracted history of animosity and to telling the police she suspected defendant of fraud, also lead us to conclude that any error in the judge's decision to limit the defense from inquiring into the details of the family's various disputes was harmless. Because of that evidence, we have no doubt, no less any reasonable doubt, that the jury would not have reached a different verdict if the defense had been permitted to present the details of the collateral family disputes or to cross-examine Armahizer about those disputes.
The arguments defendant raises in Point VI and VII concern the conduct of the prosecutor. Reversal of a defendant's conviction based on the prosecutor's argument is not warranted unless the argument "'was so egregious that it deprived [the] defendant of a fair trial.'" State v. DiFrisco, 137 N.J. 434, 474 (1994), cert. denied, 516 U.S. 1129, 116 S. Ct. 949, 133 L. Ed. 2d 873 (1996) (quoting State v. Pennington, 119 N.J. 547, 565 (1990)).
We agree that the prosecutor's comment on defendant's failure to present medical testimony about her condition was improper. But defense counsel objected, and at the conclusion of the prosecutor's summation the judge directed the jurors to disregard the prosecutor's reference to the absence of any testimony from defendant's doctors' remarks and explained that defendant had no obligation to present their testimony. In the absence of evidence that the jurors disregarded such clear direction, reviewing courts assume that the jury complied with the judge's limiting instruction. State v. Burns, 192 N.J. 312, 334-35 (2007); State v. Nelson, 155 N.J. 487, 526 (1998), cert. denied, 525 U.S. 1114, 119 S. Ct. 890, 142 L. Ed. 2d 788 (1999).
Defendant also claims that the prosecutor included "her personal assurance that [defendant], not Armahizer[,] disclosed the information on the Internet" in her closing argument. Without question, it is improper for a prosecutor to express personal beliefs not tied to the evidence. State v. Smith, 167 N.J. 158, 178 (2001); State v. Farrell, 61 N.J. 99, 103 (1972).
The difficulty for defendant is that this claim rests on a portion of one sentence of the prosecutor's closing argument. Read in context, it is clear that the prosecutor's argument was permissible comment on the evidence and reasonable inferences. Because defense counsel did not object at the time, we may infer that he did not consider the statement prejudicial. State v. Irving, 114 N.J. 427, 444 (1989).
That inference that the remark was not prejudicial is well-warranted here. In responding to defense counsel's urging the jury to conclude that Armahizer posted her own personal information on the Internet, the prosecutor advised that the jurors would have to get over that "hurdle" to find defendant guilty. She then said, "But I think that that's a very easy hurdle to get over, I respectfully submit to you." Immediately after that comment, the prosecutor asked the jurors to "bring the facts back to the elements" of the crime, and reminded them that defendant had admitted having the information and distributing it. The prosecutor then urged the jurors to consider why Armahizer, who testified that she had not given defendant permission to disseminate her personal information, would "want that stuff put on the hacker's website or on the Internet." The argument was neither egregious nor capable of depriving defendant of a fair trial. See Smith, supra, 167 N.J. at 178; cf. Farrell, supra, 61 N.J. at 103 (reversing a summation in which the prosecutor repeatedly referred to his belief and feelings about the crime and how they differed from his feelings about the other fifty cases he had tried).