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State v. Brady

Superior Court of New Jersey, Appellate Division

September 11, 2017

STATE OF NEW JERSEY, Plaintiff-Appellant,
v.
CARLIA M. BRADY, Defendant-Respondent. STATE OF NEW JERSEY, Plaintiff-Respondent,
v.
CARLIA M. BRADY, Defendant-Appellant.

          Argued May 23, 2 017

         On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 15-05-0240.

          W. Brian Stack, Assistant Prosecutor, argued the cause for appellant in A-0483-16 and respondent in A-0484-16 (Michael H. Robertson, Somerset County Prosecutor, attorney; Mr. Stack, on the briefs).

          Timothy R. Smith argued the cause for respondent in A-0483-16 and appellant in A- 0484-16 (Caruso, Smith, Picini, PC, attorneys; Mr. Smith, of counsel and on the brief; Steven J. Kaflowitz, on the brief).

          Before Judges Messano, Espinosa and Suter.

          OPINION

          MESSANO, P.J.A.D.

         These appeals require us to consider the inherent duties of a judge of the Superior Court of New Jersey, whether those duties include an obligation to take whatever steps necessary at any time to "enforce an arrest warrant, " and if such a duty exists, what must a judge do to perform, and not refrain from performing, that duty. A Somerset County grand jury indicted Carlia M. Brady, a judge assigned to the Middlesex Vicinage, charging her with second-degree official misconduct, N.J.S.A. 2C:30-2b (count one); and two counts of third-degree hindering the apprehension or prosecution of Jason Prontnicki, N.J.S.A. 2C:2 9-3a(1) and a(2) (counts two and three). The Law Division judge granted defendant's motion to dismiss count one of the indictment but denied the motion as to counts two and three. The judge subsequently denied motions for reconsideration filed by defendant and the State of New Jersey.

         We granted the State's motion for leave to appeal (A-0483-16), as well as defendant's motion for leave to appeal (A-0484-16), and consolidated both appeals to issue a single opinion. We now affirm.

          I.

          We summarize the evidence produced by the State before the grand jury, then consider the legal instructions the prosecutor gave to the panel and the judge's reasoning in deciding defendant's motion.

         A.

         The Woodbridge Police Department initially commenced the investigation, which was transferred subsequently to the Somerset County Prosecutor's Office.[1] Prontnicki and defendant started dating in late 2012 and began living together in defendant's home in Woodbridge by March 2 013. Defendant took the oath of office as a Superior Court judge on April 5, 2013. On April 29, 2013, the Old Bridge municipal court issued a warrant for Prontincki's arrest, charging him with robbery of a pharmacy, possession of a weapon - a crowbar - for an unlawful purpose and unlawful possession of a weapon.

         Shortly after 10:00 a.m. on the morning of June 10, 2013, while on vacation, defendant went to the Woodbridge Police Department to report one of her cars was missing. Woodbridge Police Officer Walter Bukowski, along with Officer Robert Bartko, interviewed defendant.

          She advised police that Prontnicki originally told her he had loaned the car to his brother in Bayonne. However, when the brother failed to return the car by 2:00 a.m., she and Prontnicki drove to Bayonne to recover the car. On the way, Prontnicki changed his story and told defendant that he lent the car to a friend. Together, defendant and Prontnicki drove around Hudson County for two hours, were unable to locate the car and returned to Woodbridge. Prontnicki returned to Hudson County at 6:00 a.m. to continue the search, and defendant told him she would report the car stolen if she did not hear from him by 10:00 a.m.

         Utilizing various databases, police located the outstanding warrant for Prontnicki's arrest for the Old Bridge robbery, as well as another outstanding arrest warrant. They also determined Prontnicki's driver's license was suspended. Bukowski testified that he and Bartko told defendant

[Y]ou're an officer of the court, you have an obligation or it would be in your best interest to let us know if [Prontnicki] is somewhere . . . now or if once we left, if she came back that . . . it would be her duty to call us and let us know if [Prontnicki] came home.

         Police tried unsuccessfully to locate Prontnicki's friend who allegedly had the car. Defendant wanted to sign a complaint against the friend, but police told her she could only sign a complaint against Prontnicki, who actually took the car. Defendant declined until she spoke to her family and attorney, and then left the police station. Police periodically rode by defendant's home afterwards and saw the missing car parked in her driveway at 9:35 p.m. They knocked on her door, but no one answered.

         Investigators secured defendant's cellphone records as part of the investigation. Between 12:36 p.m. and 12:43 p.m. on June 10, defendant sent text messages to friends, in which she acknowledged police told her of the robbery, which occurred after Prontnicki moved in with her and after defendant became a judge. In one text, defendant wrote, "I can't have [Prontnicki] in my house [because] I [would] now be harboring a criminal. I [would] have to report him."

         Shortly thereafter, Prontnicki called defendant's cellphone. Defendant recounted the conversation in a text message she sent to a friend at 1:37 p.m. on June 10:

[Prontnicki] just called to tell me he got the car and will bring it home. I told him he can't stay with me [because] he has a warrant out for his arrest and I am required to notify authorities when I know someone has a warrant. So I told him he must leave after he drops the car off as I must go to the police.

         Prontnicki corroborated these events in a statement to police after his arrest. He arrived at defendant's home with the car, and defendant's father let him into the house. He and defendant went into the garage and spoke for approximately one hour. She told him she was "supposed to call the Woodbridge Police when he arrived, " and Prontnicki told her to "do what you have to do." Prontnicki refused defendant's offer of money for cab fare and left for his brother's house in Woodbridge.

          Defendant called Woodbridge police at 4:36 p.m. and asked to speak to Officer Bartko; he was unavailable, but defendant left the following voice mail:

[T]his is Carlia Brady. . . . I sat with you to fill out [an] incident report . . . with regard to the unlawful taking of my car . . . . I just wanted to report . . . that . . . Prontnicki, the suspect . . . actually returned it just now. . . . [I]t is in my driveway. I haven't inspected it yet cause it's raining and I didn't bring it into my house because I didn't want it in my house unless I can inspect it. . . . I just wanted to let that be known. Also, to let you know since there's a warrant out for his arrest, he is not with me, but he is in Woodbridge cause he left . . . my property so please give me a call back. I, we need to know whether an amended report needs to be redone . . . or added, whatever I needed to do. Please give me a call back . . . .

         Defendant was also on vacation the next day, June 11. That morning, she and Prontnicki had a two-hour and twenty-three minute phone conversation. Prontnicki told police he asked defendant when she would be home because he needed to pick up some clothing; defendant told him she would be at the house between 3:00 p.m. and 4:00 p.m. Police, meanwhile, decided to surveil defendant's home.

         At 1:49 p.m., Prontnicki called defendant to confirm she would be in her house as planned. At 2:14 p.m., defendant sent a text message to a friend, in which she repeated Prontnicki's denials of involvement in the robbery. She also wrote:

He . . . will turn himself in . . . when his lawyer is able to come with him and cooperate fully with the cops by giving them everything he knows. He can't stay in my house cos (sic) he has an arrest warrant right now and I have a duty as a judge to report all crimes and anyone with an arrest warrant. So he is at his brother's house.

         At 3:31 p.m., defendant again called police and left a voicemail, advising that Prontnicki had returned her car and she wanted to know when she could obtain an amended report. She did not tell police about her conversations with Prontnicki, or that she expected him at her home shortly.

          At 3:48 p.m., Prontnicki called defendant as he drove to defendant's home with his brother. Undercover police stationed outside defendant's home observed Prontnicki exit the passenger side of his brother's car. The garage door opened and defendant was standing on the threshold. Prontnicki entered the garage, the door shut, and he stayed for approximately one hour. Police then saw the garage door open, and defendant and Prontnicki appeared. Holding a duffel bag, Prontnicki returned to his brother's car, entered and drove away. Police stopped the car some distance from defendant's home and arrested Prontnicki. In the bag were multiple items of clothing and miscellaneous papers. In his statement to police, Prontnicki said defendant prepared a bag of his clothing before he arrived, and he transferred the clothing to a duffel bag.

         In text messages to friends sent immediately after Prontnicki left, defendant described his claims that there was no outstanding warrant for robbery, he was only wanted for questioning, police arrested someone else for the crime and his driver's license was not suspended. Minutes later, police arrived and arrested defendant at her home.

         The grand jurors heard a recording of defendant's conversation with Bartko in the police vehicle as he took her to headquarters. Among other things, defendant told the officer she was not trying to break the law and was only helping her boyfriend, who denied there was an outstanding warrant for his arrest.

         Defendant testified at length before the grand jury and confirmed many of these events. However, defendant claimed that during her visit to the police station on the morning of June 10, police told her to call them only when she knew Prontnicki's exact whereabouts. She told them he might be at her home as they spoke, because he had keys to the house, and offered police her keys. She suggested they surveil her home, but they refused her offers. Defendant was concerned for her safety and told police she did not want "to be in the middle." She would only call them when it was safe, i.e., when Prontnicki was not present, which was why she waited until Prontnicki left before calling police after he returned her car.

         Defendant asked police to see a copy of the arrest warrant, but they refused. She offered them photographs of the Hudson County street where she and Prontnicki searched for her car, but the officers were not interested. Defendant did not want to return to her home once she knew about the robbery warrant, but police would not let her stay at the police station.

         Defendant described in detail Prontnicki's return of the car and the one-hour long conversation she had with him in the garage. Her father offered Prontnicki cab fare.

         Defendant insisted that the recordings of both her calls to the Woodbridge Police Department lacked critical information she had provided to the police. The prosecutor instructed the grand jurors that both the State and defense had experts evaluate the accuracy and authenticity of the recordings, and there was a dispute between those experts. Defendant said that during the first call on June 10, she told police Prontnicki was in Woodbridge, staying at his brother's house, and described its location. Defendant specifically remembered telling police she was "attempting to discharge any reporting obligations per [their] instructions."

         She again challenged the accuracy of the recorded conversation of her second phone call to police headquarters. Defendant claimed the recording omitted her statement that she wanted to confirm that police had received the update of Prontnicki's whereabouts she had provided the day before.

         Defendant testified that on June 11, Prontnicki told her his brother would come over to pick up his things. Instead, Prontnicki opened the garage door with a remote control that he had. He gathered some things, but defendant kept her distance and urged him to turn himself in to police. Defendant said Prontnicki left through the garage door, and, after she closed the door, she intended to go to the police station. Police arrived and arrested her, however, before she could leave.

         Other witnesses who testified after defendant directly contradicted portions of her testimony, specifically, the interactions with police at headquarters on June 10, and the events at defendant's home on June 11 when Prontnicki arrived and retrieved his clothing.

          B.

         Before any testimony, the prosecutor advised the grand jurors that defendant was charged in two complaints with hindering by harboring Prontnicki, knowing he was a fugitive charged with robbery, N.J.S.A. 2C:29-3a(1), and by "deceiving law enforcement by not immediately notifying law enforcement of . . . Prontnicki's . . . whereabouts." N.J.S.A. 2C:29-3a(5). The prosecutor further advised that he would make a "direct presentation" on the charge of official misconduct, in that defendant "failed to perform a duty . . . inherent in the office of [S]uperior [C]ourt judge, that is to enforce an arrest warrant for . . . Prontnicki by failing to adequately notify the . . . Police Department of . . . Prontnicki['s] intended appearance or presence at [defendant's] house." He explained, the State contended defendant refrained from performing this duty for her own benefit - to avoid the embarrassment of having her boyfriend arrested - and for Prontnicki's benefit - "avoiding jail."

         The prosecutor provided written instructions to the grand jury, including the elements of N.J.S.A. 2C:29-3a(1) and (2), [2]and criminal attempt, N.J.S.A. 2C:5-1. As to official misconduct, N.J.S.A. 2C:30-2b, the prosecutor began by generally following Model Jury Charge (Criminal), "Official Misconduct (N.J.S.A. 2C:30-2)" (Sept. ...


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