July 12, 2013
STATE OF NEW JERSEY, Plaintiff-Respondent,
JUNIOR A. HEADLEY, Defendant-Appellant.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 29, 2013.
On appeal from Superior Court of New Jersey, Law Division, Bergen County, Municipal Appeal No. 11-78.
Keenan & Doris, LLC, attorney for appellant (Ian C. Doris, on the brief).
John L. Molinelli, Bergen County Prosecutor, attorney for respondent (Jacqueline Choi, Assistant Prosecutor, of counsel and on the brief).
Before Judge Hayden and Hoffman.
Following a trial de novo in the Law Division, defendant Junior A. Headley appeals from an April 12, 2012 order that found him guilty of possession of burglary tools, in violation of N.J.S.A. 2C:5-5. For the reasons that follow, we reverse and remand for further proceedings consistent with this opinion.
Testimony at trial in municipal court was offered for the State by Sergeant Adam Kopesky of the Tenafly Police Department, who testified that on June 28, 2011 at 2:30 p.m., while on patrol in an unmarked police car, he received a report "about an individual, black male, wearing a tee shirt and jeans, riding a bicycle north on Ivy Lane who was . . . casing houses." After proceeding to Ivy Lane, Sergeant Kopesky said,
I observed a male fitting the description provided by dispatch. I stopped my vehicle, got out.
I was in plainclothes, but I had my ID out . . . I identified myself as a police officer and asked Mr. Headley to stop.
I explained to him what happened, that we received a call of [a] suspicious person on a bicycle. He appeared to be a little agitated about that. And then initially tried to go. At that point I observed a flathead screwdriver and a pair of gloves protruding out of his rear pocket.
At that point I saw the screwdriver which could be used as a weapon. I secured the screwdriver and the gloves . . . I patted him down further for any additional weapons he may have.
When questioned about the screwdriver and work gloves, defendant initially claimed that he worked construction, but later said he used the screwdriver to fix his bike. At that point, Sergeant Kopesky observed that the screwdriver would not fit the bike's small Phillips head screws. Sergeant Kopesky also noticed that defendant had a flashlight and a black hooded sweatshirt wrapped around his bicycle seat. He further recounted,
What happened next is I asked him where he was going, where he was coming from. And he claimed that he was coming from a church. He said that he had cleaned it, and he worked cleaning the church. He mentioned two names: Mervin and Dexter, and said he worked with those two individuals. When I asked him what church he worked for he couldn't provide a name or address of the church. At that point, Officer Cardillo was on the scene. Officer Vetrielli, and Lieutenant Faver were assisting. They were looking to try to see exactly where Mr. Headly was coming from, find the church he was claiming he was working.
Officer Vetrielli [then] went to 509 Engle Street, the church. . . . They were familiar with Mervin and Dexter [but] . . . [d]id not know Junior Headley's name at that point. Officer Vetrielli had Headley's license. The woman who worked there, . . . Cheryl Rosenberg, I believe, was shown the picture. [She] [s]aid she didn't know that individual. She was there all day and had not seen that individual at the church.
Officer Vetrielli [then] reached out to Mervin and asked him if Dexter . . . worked for him. And he basically told him that Mr. Headley was supposed to meet him in Hackensack in the morning. He did not meet him in the morning, and he hadn't seen him all day.
[W]hen Mr. Headley was at police headquarters he provided two [security codes] to areas of the church. One [code] was commonly known to several different contractors, and another [code] that was known to very few people. It's more of a recent combination because there's . . . cash and things like that in that . . . area.
When Officer Vetrielli told that to Ms. Rosenberg, according to him, she was very surprised and said that he shouldn't have the code.
No objection was made to the hearsay testimony of the other police officers, or the double hearsay testimony of Mervin or Rosenberg. When defense counsel attempted to clarify the statements allegedly made by Mervin, the municipal court judge sustained the prosecutor's objection, apparently on hearsay grounds. When defense counsel attempted to cross-examine Sergeant Kopesky regarding statements contained in the police report of the incident, the court again sustained the prosecutor's objection, stating that "this officer . . . can only testify as to what he knows."
The other officers were able to confirm that defendant did work for Mervin, including cleaning the church, just as defendant indicated, and that Mervin had given defendant the security codes for the church because defendant sometimes came to work early, before anyone else arrived.
The State did not present testimony from Rosenberg, Mervin, or the other officers. Defendant did not testify. The municipal court judge found defendant guilty, citing defendant's "changing stories given to the police officer[, ]" as the basis for concluding that defendant possessed "the screw driver, black gloves, a flashlight, and a hooded sweatshirt" for the purpose of committing a burglary. The judge imposed a sentence of one year of probation and a $756 fine, as well as mandatory assessments.
Thereafter, defendant filed a timely de novo appeal of his conviction and sentence to the Law Division, arguing his constitutional rights were violated under Miranda and further contending that the State had failed to prove intent. On March 27, 2012, the Law Division conducted a hearing on the appeal. Although the comments of the Law Division judge indicate his assessment that defendant's rights under Miranda were likely violated, he failed to exercise his discretion to reverse and remand the case for a new trial with instructions for the municipal court to address the Miranda issue. Instead, the Law Division judge affirmed defendant's conviction, stating,
I've heard enough to be able to decide this case. And I make the following findings.
I find that the defendant was riding his bicycle and did have burglary tools. And I am going to find him guilty de novo of this charge.
. . . there's no question in my mind, however, that this was not a [Terry stop; that this was not investigatory, but he was in custody at the time the statements were made. I find no [Miranda] warnings were given. I find, however, that no motion prior to trial . . . pursuant to [Rule] 7:5-2d, was filed or argued.
I find that there were some inconsistencies in the testimony, that he had the screwdriver to fix the bicycle and that it was too large a screwdriver to fit the screws on the bicycle. That he was supposed to meet Mervin but he missed him, but he went by bicycle to the location.
At the conclusion of the hearing, the judge imposed the same fine as the municipal court, but suspended it, without imposing a term of probation. On April 12, 2012, the judge signed an order memorializing his oral decision.
This appeal followed, with defendant raising the following argument for our consideration:
DEFENDANT'S CONVICTION WAS BASED ON STATEMENTS MADE IN VIOLATION OF DEFENDANT'S RIGHTS, THEREFORE DEFENDANT'S CONVICTION MUST BE OVERTURNED
Defendant's brief also contains argument that the record lacks credible evidence to uphold the guilty finding of the Law Division, but without a separate point heading, as required by Rule 2:6-2(a)(5). Because we conclude that the Law Division erred in not addressing the Miranda issue, we decline to address defendant's sufficiency-of-evidence argument.
In this case, the Law Division judge explicitly stated that defendant's Miranda argument had merit, but then declined to consider it, stating that defendant failed to file a motion prior to the municipal trial to suppress his statements to the police. See R. 7:5-2(d). Although usually "judicial economy is best served by resolving these issues pre-trial, " the Law Division on de novo review may, for good cause shown, sua sponte raise a constitutional issue, such as a Miranda issue, and remand for retrial. State v. McLendon, 331
N.J. Super. 104, 107, 109 (App. Div. 2000).
Thus, the Law Division judge erred by failing to recognize that he had the authority to address defendant's Miranda argument. We further note that Rule 3:23-8(a) provides, in pertinent part:
the trial of the appeal shall be heard de novo on the record unless it shall appear that . . . the rights of defendant were prejudiced below in which event the court to which the appeal has been taken may either reverse and remand for a new trial or conduct a plenary trial de novo without a jury.
Although we decline to address the merits of defendant's sufficiency-of-evidence argument, we nevertheless conclude that a limited discussion of relevant issues may prove helpful to the court on remand.
In the event the Miranda hearing does not dictate the outcome of the case, the Law Division judge should again carefully consider the sufficiency of the evidence. N.J.S.A. 2C:5-5 proscribes possession of burglar's tools, and provides, in pertinent part:
a. Any person who manufactures or possesses any engine, machine, tool or implement adapted, designed or commonly used for committing or facilitating any offense in chapter 20 of this Title or offenses involving forcible entry into premises.
(1) Knowing the same to be so adapted or designed or commonly used; and
(2) With either a purpose so to use or employ it, or with a purpose to provide it to some person who he knows has such a purpose to use or employ it, is guilty of an offense.
The statute "requires an assessment of intent or state of mind." State v. Gertrude, 309
N.J. Super. 354, 358 (App. Div. 1998). As we noted in State v. Walsh, 9
N.J. Super. 43, 46 (App. Div. 1950), 
An essential element of the crime is the intent to use or employ the tool or implement, or to allow the same to be used or employed for cutting through, forcing or breaking open any building, room, etc., in order to steal therefrom any money or property. When specific intent is an essential element of the crime charged, the burden is on the State to prove such intent. This burden may be met by direct proof or by circumstantial evidence. . . . There must be proof, at least, of some circumstance or circumstances, in addition to the proof of the possession of the tool itself, from which the jury could draw a legitimate inference of the required intent.
In Walsh, the defendant was walking on a public sidewalk at 7:50 p.m., wearing dark clothes in a secluded neighborhood in North Elizabeth. Id . at 45. Two police officers, who were on special patrol because a number of burglaries had occurred in that area, drove up alongside the defendant and asked him where Algonquin Place was; he told them two or three blocks down the road, which was correct. Ibid.
The officers then asked him who he was, where he was going and what he was doing there, but he refused to answer any further questions. Ibid. The officers then searched him and found in an outside pocket of his overcoat two cotton gloves, a jimmy inside one of the gloves, a small flashlight and a small mirror. Ibid.
The defendant was arrested and charged with possession of burglary tools. Id . at 46. A jury convicted the defendant on these proofs and he appealed. Id . at 44-45. We reversed Walsh's conviction, holding that in addition to the proof of the possession of the jimmy, there must be proof of some circumstance or circumstances from which the jury could draw a legitimate inference of the required criminal intent, i.e. that the defendant possessed the jimmy with the intent to commit a burglary. Id . at 46.
In State v. Zito, 54 N.J. 206, 215 (1969), Chief Justice Weintraub, writing for a unanimous Court, made clear that a failure to give a good account of oneself may not itself be punished or be made an essential element of a crime, nor may it serve as affirmative proof of presence for an unlawful purpose.
We stress that an arrest cannot be made because a person refused or failed to give a good account. An arrest can be made only if in the total circumstances there is probable cause to believe the individual was present at the place for an unlawful purpose, i.e., to commit a crime or a petty offense.
Id. at 219-20.
The Court further emphasized that the policeman's evaluation of the sufficiency of the suspect's explanation should have no weight at trial because "it is the court and not a policeman who ultimately must decide whether the defendant was present at the place for an unlawful purpose" Id at 219.
The judge should also consider whether hearsay testimony from Sergeant Kopesky violated defendant's Sixth Amendment rights "Hearsay evidence considered untrustworthy and unreliable is generally not admissible at trial NJRE 802" State v. White 158 N.J. 230 238 (1999) When a State's witness "conveys directly or by inference information from a non-testifying declarant to incriminate the defendant in the crime charged" both the Confrontation Clause U.S. Const amend VI and the hearsay rule NJRE 802 are violated Branch supra 182 N.J. at 350 (citing State v Bankston 63 N.J. 263 268-69 (1973))
Reversed and remanded for proceedings in accordance with this opinion