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State v. Lopez

Superior Court of New Jersey, Appellate Division

May 23, 2013

STATE OF NEW JERSEY, Plaintiff-Respondent,
DANIEL LOPEZ, Defendant-Appellant.


Argued April 15, 2013.

On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Indictment No. 09-06-522.

Thomas J. Gossé argued the cause for appellant.

Jennifer B. Paszkiewicz, Assistant Prosecutor, argued the cause for respondent (Robert D. Bernardi, Burlington County Prosecutor, attorney; Bethany L. Deal, Assistant Prosecutor, of counsel and on the brief).

Before Judges Parrillo, Fasciale and Carroll.


Tried by a jury, defendant Daniel Lopez was found guilty of two counts of unlawful possession of a weapon (two Ruger 9 mm pistols), N.J.S.A. 2C:39-5(b); and one count of possession of prohibited devices (hollow nose bullets), N.J.S.A. 2C:39- 3(f)(1).[1] He was sentenced to an aggregate five-year term with a three-year period of parole ineligibility. Defendant appeals, and we affirm.

According to the State's proofs, in October 2007, defendant met Manuela Thompson, who was working as a home care nurse for his sister, Marilyn Lopez, with whom defendant was living at the sister's home in Pennsauken. At the time, both defendant and Thompson were estranged from their respective spouses and in January 2008, began having an affair. Thompson was able to conceal the affair from her husband Charles, with whom she was still living, for several months until he discovered text messages and calls to and from defendant on her phone. Charles confronted his wife, screamed and cursed at her, and accused her of cheating. He argued with her, but never became physically violent.

In August 2008, Thompson left the family home and leased an apartment in the Allison Apartments complex in Evesham/Marlton. Defendant and Thompson continued dating and while he did not move into the apartment, he sometimes stayed overnight with her once or twice a week, although there were some weeks he did not sleep there at all. Defendant did not contribute to the rent. Nor was he named on the lease. He did not keep any clothes or personal belongings at the apartment other than a toothbrush, and would always tell Thompson when he was coming over. Because she left for work very early in the morning, at some point Thompson left a key to the apartment so defendant could leave whenever he woke up. According to Thompson, "one day I just left the key with him and told him you can stay and leave whenever you wake up." During this time, defendant continued living with his sister, although his sister, brother-in-law and son all said that defendant was living with Thompson at her apartment at this time.

The relationship between defendant and Thompson was volatile. The couple broke up many times. Thompson described defendant as "very unstable mentally and emotionally, " and added "a lot of distress" to her life. Thompson became pregnant by defendant but miscarried in December 2008.

On January 25, 2009, defendant visited Thompson's apartment while she was in the shower but was unable to get in the house because the screen door was locked. When Thompson got out of the shower, she discovered she had missed several text messages and calls from him. In the messages, defendant accused her of treating him like a dog. According to Thompson, "All the craziness, his emotional roller coaster started again." Defendant threatened to tell Thompson's husband and was controlling in her view.

It was at this point that Thompson decided to end the relationship, and on that night and the next morning she sent defendant a text message to leave her alone. Later in the day on January 26, 2009, defendant called Thompson and left two voicemails. In the voicemails, defendant threatened to end the relationship on his terms and to confront Thompson's husband to see who was the "more macho man." That night Thompson slept over at her husband's house.

On January 27, 2009, at approximately 3:45 p.m., Thompson went back to her apartment after work to pick up some items for her son, who was sick. When she walked into her apartment, defendant stepped out of the kitchen pointing a handgun at her. Thompson did not expect anyone to be in her apartment and did not see any cars or people she knew in the parking lot. Defendant told her he was tired of their situation and her refusal to divorce her husband. According to Thompson, defendant appeared "very anxious, very nervous. He was sweaty and he look[ed] worn out, worn out like he hasn't been sleeping for weeks."

Defendant kept pointing the gun at her as he walked around her in the kitchen and dining room area. Thompson told defendant there was no need to be pointing a gun at her and told him they should sit down over coffee and talk things over. According to Thompson, she "wanted [defendant] to believe I wasn't afraid of him at all, even though I was because I thought I was going to die any minute, any second." When Thompson went to retrieve napkins from the kitchen, she observed a second gun, two white and red bottles of lighter fluid and matches. Defendant grabbed the second gun and pointed both guns at Thompson, threatening that he had two options that night --kill her or kill her and then himself. Thompson believed defendant was capable of killing her because he was "mentally unstable." Defendant also motioned to the lighter fluid and said he was going to burn the apartment down.

Thompson tried to calm defendant down by talking to him about his relatives and sitting near him. Thompson eventually convinced defendant to let her leave by telling him that she had to take care of her sick son. While giving the impression that everything was normal, and they remained "on good terms, " once she left the apartment, she ran down the stairs and as soon as it was safe, immediately called her husband to tell him that defendant threatened her with a gun in her apartment.

The entire ordeal lasted several hours. Thompson returned to her husband's house and called police to report that defendant threatened her with his gun. The police responded to her husband's home and interviewed Thompson when she made the additional claim that defendant also threatened to burn down the apartment with two bottles of gasoline or lighter fluid, which defendant had displayed to her in plain view in the apartment.

Lieutenant Walt Miller of the Evesham Police Department responded to Thompson's apartment and set up a command post. Knowing that defendant was armed and inside the apartment, Miller evacuated the building and then called and spoke with defendant. Defendant seemed "agitated and angry" and, because he did not believe Miller was a police officer, hung up the phone, as he repeatedly did after several more calls. After speaking to his sister, however, defendant calmed down and once he realized it was the police who were calling him, told Miller that he had two weapons in the apartment. Defendant then exited the apartment, leaving the weapons inside, and was taken into custody.

When asked for his address during processing, defendant responded that he lived at his sister's Pennsauken home. Later, during his recorded interview, defendant again provided the Pennsauken address as his home. He acknowledged spending one or two nights a week at Thompson's apartment but did not leave any belongings there. Defendant also confirmed that the guns and ammo were his.

Patrol Officer Ryan Willard of the Evesham Township Police Department also responded to the scene. After defendant exited the apartment, Willard entered and located the two loaded weapons where defendant described they would be. A black .45 caliber Ruger handgun was sitting on the arm of the couch close to the entrance of the apartment. The handgun was loaded with hollow point bullets but had no round in the chamber. The second, a 9mm Ruger handgun was located in a storage bin on top of the closet in the master bedroom. The handgun was loaded with hollow point bullets and had a round in the chamber. No lighter fluid bottles were found during the search.

In subsequent statements to the police, defendant confirmed that the gun and hollow nose bullets were his. He told police that he kept these weapons at the apartment because of constant fear of Thompson's estranged husband, who was clearly angry over his wife's affair with defendant. According to defendant's brother-in-law, back in November 2008, he helped defendant transfer two firearms from defendant's residence in Pennsauken to Thompson's apartment.

Defendant, however, denied pointing his firearm at Thompson or threatening her in any way. He also denied having any container of accelerant or any gas can and, likewise, denied that he ever threatened to burn down the apartment. As noted, the police specifically looked for, but did not find, the accelerant or gas cans which Thompson alleged defendant used to threaten her. When Thompson was confronted with this fact, she maintained that there had been a container in the apartment and opined that defendant must have removed it and thrown it in the dumpster. The police then searched the dumpster but did not find it.

Thompson stayed at her husband's house the evening of January 27, 2009 and returned to her apartment the next morning, where she found a bullet on her pillow. She called the police. Thereafter, Thompson did not return to her apartment until February 3, 2009, where, together with her husband, she began packing up her belongings. In the bedroom, Thompson found a bag that contained two yellow lighter fluid bottles under a rocking chair. The bag could not be seen until the chair was moved. The next day, her husband called the police, nine days after defendant was arrested and the apartment searched. When the police arrived, there was no furniture left in the room and the bag had been placed on the ground. The police photographed the bottles and collected them as evidence. Evesham Police Officer William Kinner then wrote a police report documenting the discovery and retrieval of the bottles.

On appeal, defendant raises the following issues:

A. The court below erred by failing to instruct the jury that they must find defendant not guilty of counts 5 and 7 (unlawful possession of handgun) unless the State proved beyond a reasonable doubt that the handguns were not being kept on "premises or other land owned or possessed by [the defendant]." N.J.S.A. 2C:39-6(e).
B. The court below erred by failing to specifically instruct the jury that it was defendant's contention that the Allison Apartments was his alternate place of lodging and that if the State failed to prove beyond a reasonable doubt that this contention was untrue, the jury had to find defendant not guilty of the two counts alleging unlawful possession of a firearm.


Defendant faults the jury charge on unlawful possession of a handgun for failing to instruct that a defendant may lawfully keep firearms at "multiple" residences and on premises he "possesses." We disagree and find the jury charge adequate.

Under N.J.S.A. 2C:39-5(b), it is unlawful for a person to possess a handgun without first obtaining a permit to carry it. There is, however, an exemption to this proscription allowing a person to keep a firearm at his residence, place of business, or other land or premises owned or possessed by him or to transport a firearm between residences when moving. N.J.S.A. 2C:39-6(e). This statutory exception thus reads:

Nothing in subsections b., c. and d. of N.J.S.A. 2C:39-5 shall be construed to prevent a person keeping or carrying about his place of business, residence, premises or other land owned or possessed by him, any firearm, or from carrying the same, in the manner specified in subsection g. of this section, from any place of purchase to his residence or place of business, between his dwelling and his place of business, between one place of business or residence and another when moving, or between his dwelling or place of business and place where such firearms are repaired, for the purpose of repair. For the purposes of this section, a place of business shall be deemed to be a fixed location.

[N.J.S.A. 2C:39-6(e).]

Because N.J.S.A. 2C:39-6(e) does not explicitly place the burden of proof or the burden of producing evidence on the defendant, it is an ordinary defense, State v. Moultrie, 357 N.J.Super. 547, 555 (App. Div. 2003), which the State must disprove, id. at 556. However, a defendant requesting a defense must show that there is a rational basis in the facts before the defense will be included in the jury charge. Ibid.

In this case, a proposed instruction on unlawful possession was discussed during a charge conference. Defense counsel requested that the jury be instructed on the statutory exemptions that permit individuals to keep handguns at "multiple residences" and on premises they "possess, " and that these exceptions should be stated as a fourth element of the unlawful possession offense. The trial judge concluded that there was a factual basis for including that "residency" exemption, which he would characterize as a fourth element, namely that the State has to prove beyond a reasonable doubt that Thompson's apartment was not defendant's residence. Specifically, the judge concluded:

My ruling on this is that I'm going to give them the definition of residence and that's what I think it is. I don't think there's enough here to say it's land, premises, or other land owned or possessed by him. I just don't see – it's his residence. If it's his residence it's possessed by him but I think . . . it's less confusing to the jury as well, that's not a big element of what I need to tell them, but I think what the evidence and the facts that I can use to base something is the claim that it's his residence as opposed to being a premises or other land owned or possessed by him.
And I think I will, I think it's six of one, half a dozen of the other if I say here's an exception and find this, I think if I find cause it's an ordinary defense the State has to disprove that and what I'm saying is that the State has to prove beyond a reasonable doubt that that location isn't his residence, I think that's the cleanest way to present it to them, except to say, well, find it and then say well, if it's his residence, you don't find it and I understand both arguments on that side[, ] but I think it's cleaner and more direct and less confusing to them if I just give them that.

On the other hand, the judge found insufficient evidence that defendant "possessed" the premises to warrant a charge on that statutory exemption, and also that the statute did not contemplate an exception for "dual residences." As to both rulings, the judge reasoned:

I think with premises or land, . . . the only thing I think there is a factual basis is I'm claiming that's my residence. It isn't, he's not claiming he owns it. I don't see that I can find there's enough to say that he possessed it. I mean he has a key to it but that means he possesses the key, not that he possesses [the residence]. I think I would go with residence as being the only part of that exception that there's evidence that I could give them on this. That's how I think I should do it.
They can [have dual residences] but sometimes the way the case law looks at it and the way the legal definitions look like and law dictionaries, residence, you could have more than one residence sometimes and sometimes residence means domicile which is where you are and I think this law, it doesn't, it doesn't say you can move between residence and residence. It's between place of business and residence, between a dwelling or place of business. So they don't contemplate that you're going to have multiple residences. This isn't a case, we talked about this a little bit yesterday, like I have a shore home for a month and that's going to be my residence for that period of time. This to me is a little bit different so I thought the more restrictive definition would be the one that should be used . . . .

As to the actual charge given to the jury, the judge instructed that the State had to prove four elements beyond a reasonable doubt for the unlawful possession charges, namely that the weapons were handguns; defendant knowingly possessed them; defendant did not have a permit to possess them; and lastly, which the judge added to the model jury charge, "defendant's residence is not Allison Apartments . . . Marlton, New Jersey." The judge further explained:

And fourth, the fourth element that the State must prove beyond a reasonable doubt for each separate charge is that Allison Apartments . . . Marlton, New Jersey, is not defendant's residence.
The term residence means any building or structure though movable and temporary or a portion thereof which is for the time being the actor's home or place of lodging. Thus, for each separate charge, you must determine whether Allison Apartments . . . Marlton, New Jersey, constituted defendant's residence as it has been defined by me for you.
If you find that the State has failed to prove any of the elements of the charge you are considering beyond a reasonable doubt, your verdict must be not guilty on that charge.

The judge reemphasized this definition of residence when charging the jury on the issue of possession of hollow point bullets.[2] We have no quarrel with this instruction.

"Appropriate and proper charges to a jury are essential for a fair trial." State v. Green, 86 N.J. 281, 287 (1981). "[F]aithful performance of the court's duty of expounding the law for the jury's guidance and instruction requires a plain and clear exposition of the issues." Id . at 288. A reviewing court must assess whether the instruction adequately conveys the law and does not confuse the jury. State v. Brown, 80 N.J. 587, 600 (1979).

Proper jury charges are even "more critical in a criminal case when a person's liberty is at stake." Green, supra, 86 N.J. at 289. "Erroneous instructions on matters or issues that are material to the jury's deliberation are presumed to be reversible error in criminal prosecutions." State v. Jordan, 147 N.J. 409, 422 (1997).

"[P]ortions of a charge alleged to be erroneous cannot be dealt with in isolation but the charge should be examined as a whole to determine its overall effect." State v. Wilbely, 63 N.J. 420, 422 (1973). "No party is entitled to have the jury charged in his or her own words; all that is necessary is that the charge as a whole be accurate." Jordan, supra, 147 N.J. at 422.

As noted, there must be a rational basis in the facts before a defense is charged to the jury. Moultrie, supra, 357 N.J.Super. at 556. "[I]n deciding whether a basis has been presented to support a jury instruction on a defense theory, defendant is entitled to have us accept his version of the events." Id . at 559. "'A defendant in a criminal case is entitled to have the jury consider any legally recognized defense theory which has some foundation in the evidence, however tenuous. . . . Very slight evidence on a theory of defense will justify the giving of an instruction.'" State v. Powell, 84 N.J. 305, 317 (1980) (quoting People v. Dortch, 314 N.E.2d 324, 325-26 (Ill.App.Ct. 1974)).

Here, the judge not only advised the jury of the statutory exemption for one's residence, he charged the exception as a fourth element of the weapons offenses that the State had to disprove beyond a reasonable doubt. We further agree with the trial judge that there was insufficient evidence that defendant "possessed" Thompson's apartment or that her apartment was his "alternate" residence to warrant an instruction on those statutory exceptions as well.

As to the former, however expansive the term "possessed" may be defined, it simply does not encompass the evidence adduced in this case. Indisputably, defendant holds no proprietary interest in the premises, legal or otherwise. Moreover, defendant had no independent or enforceable right of entry thereupon, other than by virtue of the consent and allowance of Thompson, the named tenant and exclusive lessee. In contrast, defendant paid no rent and was not named on the lease. He kept no belongings in the apartment other than a toothbrush. His occupancy, by his own admission, was temporary and fleeting, consisting of brief overnight visitations amounting to no more than twice weekly. And his access thereto was similarly circumscribed. While defendant had a key to the apartment, it was only with the permission of Thompson, who could withdraw her consent to his entry at any time. She was also able to physically bar him from entering the premises by locking the screen door, which she did on at least one occasion. Equally lacking was any evidence that defendant could exercise control or dominion over the premises. On the contrary, defendant would always inform Thompson in advance of his visits.

By extending this statutory exception to include key holders, as defendant's countervailing argument suggests, the door is left opened to a multiplicity of situations where the term "possessed" might be invoked to sanction possession of a weapon otherwise proscribed by N.J.S.A. 2C:39-5. Holders of hotel room keys as well as individuals holding keys to their neighbors' or relatives' homes solely for emergency purposes come readily to mind. Such an expansive construction runs counter to "the overriding philosophy of the Legislature and of the judiciary[] to limit the use of guns." State v. Rovito, 99 N.J. 581, 586 (1985). Under the circumstances, then, we conclude that defendant has not demonstrated a rational basis in the evidence to allow the jury to acquit him if they found he "possessed" the premises.

Nor was there error in omitting to instruct the jury that the law allows defendant to keep handguns at a "dual" or "alternate" residence. In our view, N.J.S.A. 2C:39-6(e) does not provide for such an exemption, and defendant offers no support for his contrary interpretation. Simply by its plain reading, the statutory provision at issue employs the term "residence, " not "residences, " and expressly states that an individual may move firearms between residences only when moving. N.J.S.A. 2C:39-6(e). Such a delimiting construction comports with the clear legislative intent of our gun control legislation to restrict the use of guns. Rovito, supra, 99 N.J. at 586-87; see also State v. Hatch, 64 N.J. 179, 184-86 (1973); State v. Wright, 155 N.J.Super. 549, 553 (App. Div. 1978). Moreover, "exemptions from gun statutes should be strictly construed to better effectuate the policy of gun control." Rovito, supra, 99 N.J. at 587; see also Service Armament Co. v. Hyland, 70 N.J. 550, 559 (1976) (since exception to the gun control law must be narrowly construed, the Court found that "replicas" of antique guns were not "antique firearms" exempted from the statute); State v. Marques, 140 N.J.Super. 363, 366 (App. Div. 1976) (holding inapplicable the statutory exception for guns kept in a dwelling house to guns kept in a college dormitory); State v. Valentine, 124 N.J.Super. 425, 426-27 (App. Div. 1973) (statutory exception permitting one to carry a firearm at his or her place of business inapplicable to the manager of a bar owned by another).

Contrary to defendant's contention, the trial judge properly defined the "residence" exemption so that the jury could decide whether the State had proven beyond a reasonable doubt that Thompson's apartment was not defendant's residence. In this regard, the judge explained that a "residence" need not be permanent and may only be temporary. He further informed that a residence was "any building or structure, though movable or temporary, or a portion thereof, which is for the time being the actor's home or place of lodging." We conclude the judge adequately conveyed the only statutory exemption applicable in this matter.

Even assuming N.J.S.A. 2C:39-6(e) may be read to include, as defendant suggests, multiple residences, the fact remains there is no foundation in the evidence for the jury to have reasonably concluded that defendant simultaneously resided at both Thompson's apartment and his sister's home. On the contrary, depending on which version is credited, the evidence established that defendant resided at one or the other address but not both. Thus, according to the State's proofs, defendant was merely a guest or visitor of Thompson's at her apartment and never took up residence there even temporarily, much less on a more permanent basis. Indeed, in his taped statement to police, defendant himself provided his sister's address as his residence. Defense trial proofs, on the other hand, tended to show that he was living with Thompson at her apartment. On this score, defendant's brother-in-law testified that he helped defendant move into the victim's home in November 2008; his sister testified that defendant told her he was living with the victim at her apartment; and defendant's son testified that defendant told him in January 2009 that he had just moved into a new place. Absent from the record, however, is any evidence that defendant resided at both places simultaneously and therefore, even if allowed, a statutory exemption for dual or multiple residences had no rational supporting basis in this record to warrant such a charge. Accordingly, its omission from the court's jury instruction was not error.


Defendant next contends that the court erred in failing to dismiss the indictment sua sponte because the State withheld a police report detailing the existence of potentially exculpatory evidence that was later lost or destroyed, thereby depriving him of a fair trial. We disagree.

Some background is in order to place this issue in proper context. Earlier in discovery — approximately two years before trial — defense counsel received photographs depicting the two bottles of lighter fluid about which defendant had been questioned after his arrest and were later found in Thompson's apartment, and an evidence log detailing their recovery by police on February 5, 2009. However, it was not until eleven days before the trial that defense counsel also received in discovery a police report documenting the exact date on which the bottles were found — February 4, 2009 (nine days after the police completed their search of the apartment) — and by whom — Thompson and her husband. By then, the potential evidence had been lost. In fact, it was not until three days before trial that the defense learned that the bottles, as well as a receipt for their purchase, had been lost. At the September 2, 2011 pre-trial conference, defense counsel requested an adjournment to "see if [he] can trace something in some way, shape or form . . . ." The trial judge denied relief, [3] concluding:

I don't find that there's prejudice in this case such that I need to grant an adjournment because I don't know what the adjournment would really do. There's not going to be an opportunity to fingerprint the containers anymore because they're not available. There's not going to be opportunity to get serial numbers because no one took them. I think as both counsel have at least alluded to, these are going to be very fertile avenues of cross-examination for the defense in terms of asking the detectives and asking whoever's testifying why weren't these found the day of, where were they, how did you do, what happened with them, those types of things. The defense is going to be able to bring all those matters to the fore. So I don't [now] find that there's prejudice to [defendant's] case, that they're not able now to go forward with the case . . . or I don't find that I should dismiss the charges because these two items are not available anymore.

Thereafter, at trial, counsel again raised the issue of the lost evidence, this time requesting a mistrial based on fundamental fairness. The judge denied this request as well.

Citing the credibility of the victim as key, defendant now argues he was irreparably prejudiced by the belated discovery and the loss of so-called exculpatory evidence, thus preventing him from effectively cross-examining Thompson on the critical issue of defendant's residence. We disagree.

"Generally, when there has been a loss or destruction of physical evidence in a criminal trial, the court must determine whether defendant has thereby been denied due process and a fair trial." State v. Washington, 165 N.J.Super. 149, 155 (App. Div. 1979); see also State v. Mustaro, 411 N.J.Super. 91, 102-03 (App. Div. 2009). In State v. Hollander, 201 N.J.Super. 453 (App. Div.), certif. denied, 101 N.J. 335 (1985), we stated:

New Jersey case law together with the recent [California v. Trombetta, 467 U.S. 479, 104 S.Ct. 2528, 81 L.Ed.2d 413 (1984)] decision reveal[s] three factors on which a court should focus to determine whether a due process violation has occurred when there has been either suppression, loss or destruction of physical evidence in a criminal trial: (1) whether there was bad faith or connivance on the part of the government; (2) whether the evidence suppressed, lost or destroyed was sufficiently material to the defense; (3) whether defendant was prejudiced by the loss or destruction of the evidence[.]

[Id. at 479 (citations omitted).]

"In order to meet the standard of constitutional materiality: '[E]vidence must both possess an exculpatory value that was apparent before the evidence was destroyed, and also be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means.'" Id . at 479-80 (quoting California v. Trombetta, 467 U.S. 479, 489, 104 S.Ct. 2528, 2534, 81 L.Ed.2d 413, 422 (1984)). "[E]vidence, to be sufficiently material, must be useful as to discredit a witness to the point of probably or possibly affecting the result of the trial." Washington, supra, 165 N.J.Super. at 155. While the absence of certain physical evidence may make cross-examination more difficult, such difficulties do not necessarily amount to a denial of confrontation. Id . at 156. And evidence is not always "material" simply because it touches on the credibility of a witness. State v. Marshall, 148 N.J. 89, 156, cert. denied, 522 U.S. 850, 118 S.Ct. 140, 139 L.Ed.2d 88 (1997).

Here, there is no evidence that the discovery of the police report was intentionally delayed or that the lighter fluid bottles and purchase receipt detailed therein were lost or destroyed in bad faith. During a pretrial conference on September 2, 2011, the prosecutor informed the court that she first became aware of the report one week before when preparing for trial and interviewing the lead investigating officer, who had created the report. Although the prosecutor had asked the Evesham Police Department for all reports and evidence on several previous occasions, she never received this report. As soon as she became aware of it, the prosecutor forwarded the report to defense counsel.

Even defense counsel acknowledged that the prosecutor had given him all discovery she had: "[T]he prosecutor has given me everything the moment she's gotten it. It has nothing to do with that office or her at all and she just gave me something else again today that's probably helpful to my client so that isn't the issue." And the judge agreed that the State had not done anything improper.

Nor was the prosecutor responsible for the misplaced bottles of lighter fluid and receipt. As the prosecutor explained, the bottles were originally stored at the Evesham Police Department because they were flammable and therefore prohibited in the Prosecutor's Office. After a compliance review, all evidence from 2009, including the bottles, were moved to an overflow vault. It was only after she requested the items for trial that the prosecutor first discovered the bottles were missing. There is no suggestion, however, that the putative evidence was lost or destroyed intentionally, much less in bad faith or connivance on the part of the prosecution.

"Without bad faith on the part of the State, 'failure to preserve potentially useful evidence does not constitute a denial of due process of law.'" George v. City of Newark, 384 N.J.Super. 232, 243 (App. Div. 2006) (quoting Arizona v. Youngblood, 488 U.S. 51, 57, 109 S.Ct. 333, 337, 102 L.Ed.2d 281, 289 (1988)). Where the lost evidence is merely potentially exculpatory, the "court's finding of bad faith is crucial[.]" State v. Ruffin, 371 N.J.Super. 371, 392 (App. Div. 2004); see also State v. Brent, 265 N.J.Super. 577, 586-87 (App. Div. 1993), rev'd on other grounds, 137 N.J. 107 (1994). "In the absence of bad faith, relief should be granted only where there is a 'showing of manifest prejudice or harm' arising from the failure to preserve evidence." State v. Dreher, 302 N.J.Super. 408, 489 (App. Div.) (quoting DeVitis v. N.J. Racing Comm'n, 202 N.J.Super. 484, 494 (App. Div.), certif. denied, 102 N.J. 337 (1985)), certif. denied, 152 N.J. 10 (1997), cert. denied, 524 U.S. 943, 118 S.Ct. 2353, 141 L.Ed.2d 723 (1998), overruled in part on other grounds, State v. Brown, 190 N.J. 144 (2007). In this regard, the prejudice prong and the materiality prong are often considered together as they are "inextricably intertwined." State v. Montijo, 320 N.J.Super. 483, 490 (Law Div. 1998).

Here, defendant has not shown that the lost evidence was material to his defense, much less exculpatory. He merely claims that had he timely received the police report and had the evidence not since been lost, he may have been able to obtain fingerprints from the bottles or a serial number to "track them down" and possibly determine whether the Thompsons purchased the items. This claim, however, is far too speculative to warrant the extraordinary relief requested. Merely suggesting the possibility that the lost evidence might be relevant or material is insufficient. There must be a showing that the putative evidence has exculpatory value and here defendant has offered no proof that the bottles of lighter fluid or receipt would have discredited the victim or her husband, much less to the point where the outcome of the trial would be different. State v. Nelson, 155 N.J. 487, 500 (1998), cert. denied, 525 U.S. 1114, 119 S.Ct. 890, 142 L.Ed.2d 788 (1999).

Defendant's failing in this regard is compounded by the fact that he was aware of the existence of the lighter fluid bottles two years before trial. As noted, defendant was given timely discovery of photographs of the bottles and an evidence log indicating when they were recovered by the police. Yet counsel never investigated the circumstances surrounding their discovery, including when and by whom. Although the police report eventually and belatedly provided answers to these inquiries, defendant nevertheless had sufficient information available to him well in advance of trial to have conducted appropriate fact-gathering to ascertain the existence of any evidence potentially favorable to the defense.

In any event, we are satisfied defendant suffered no prejudice due to the late discovery of the police report and eventual loss of items in question. Defendant had full opportunity to impeach the Thompsons's credibility through cross-examination, Nelson, supra, 330 N.J.Super. at 215, in which counsel engaged effectively. Indeed, testimony at trial established that the police did not find bottles on the night of the incident; that the victim and her husband had discovered the bottles several days later; that the bottles were not discovered in the kitchen; that although the victim claimed to have moved the bottles onto the dresser after they were found, they were somehow moved onto the floor before being photographed by the police; and that the bottles the victim discovered were not the same colors as those she claimed to have seen during the incident. Thus, counsel attacked the victim's credibility on a number of grounds and obviously did so effectively as the jury did not convict defendant of any of the charges that directly hinged on the victim's credibility, including aggravated assault for pointing a firearm; criminal restraint; terroristic threats; or possession of a weapon for an unlawful purpose.

On the other hand, there was ample evidence to convict defendant of unlawful possession of a weapon and possession of prohibited devices even without the victim's testimony. Defendant informed the police where the weapons could be found in the victim's apartment, and later confirmed that the guns[4] and hollow point bullets that the police eventually found were his in statements he provided the police post-arrest.

Under all of these circumstances, we are satisfied that defendant suffered no prejudice by the late discovery of the police report or the loss of evidence. We are equally satisfied that there is not a reasonable probability that, had the police report been disclosed earlier and the evidence not displaced, the result of the proceeding would have been different. United States v. Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375, 3383, 87 L.Ed.2d 481, 494 (1985).


Defendant next argues that the State intentionally withheld an "enhanced" photograph of a bullet on Thompson's pillow that was highly prejudicial, in violation of Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 1196-97, 10 L.Ed.2d 215, 218 (1963). We disagree.

"In order to establish a Brady violation, the defendant must show that: (1) the prosecution suppressed evidence; (2) the evidence is favorable to the defense; and (3) the evidence is material." State v. Martini, 160 N.J. 248, 268 (1999); see also Moore v. Illinois, 408 U.S. 786, 794-95, 92 S.Ct. 2562, 2568, 33L.Ed.2d 706, 713, reh'g denied, 409 U.S. 897, 93 S.Ct. 87, 34L.Ed.2d 155 (1972). No Brady violation occurred here.

Thompson had previously testified that when she returned to her apartment the morning after the incident, she found a bullet lying on her pillow. She informed the police who responded and documented the bullet. The prosecutor introduced a photograph at trial that magnified and showed the bullet lying on the pillow. Although defendant characterizes the depiction as an "enhanced" photograph, it was actually a picture on a computer that the prosecutor simply "zoomed in" on. Indeed, defense counsel did not object when the photograph was first introduced although he voiced an objection after the officer's testimony.

First, the prosecution did not fail to disclose the photograph. The unmagnified photograph was given to the defense well before trial. All the prosecutor did was "zoom in" on the photograph, similar in effect to using a magnifying glass. Defense counsel was in possession of the photograph and had the capacity to examine the photograph much more closely. Second, the photograph is not favorable to the defense. On the contrary, it is detrimental in that it corroborates Thompson's testimony. Lastly, the photograph is not material. Defendant was only convicted on the weapon possession and hollow nose bullet charges, which did not rely on the photograph of the bullet. There was ample evidence to convict on those charges, resulting in a verdict worthy of confidence.


We have considered defendant's remaining contentions and find them without sufficient merit to warrant discussion in this opinion. R. 2:11-3(e)(2)(E).


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