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State v. Mosley

Supreme Court of New Jersey

March 6, 2018

STATE OF NEW JERSEY, Plaintiff-Respondent,
v.
NOAH MOSLEY, a/k/a NUBEE OUTUUQCIO, NUBEE BUCKUOUTUUQCIO, and NOAH MOSELEY, Defendant-Appellant.

          Argued November 29, 2017

         On certification to the Superior Court, Appellate Division.

          Peter T. Blum, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Peter T. Blum, of counsel and on the briefs).

          David M. Liston, Assistant Prosecutor, argued the cause for respondent (Andrew C. Carey, Middlesex County Prosecutor, attorney; David M. Liston, of counsel and on the briefs, and Nancy A. Hulett, Assistant Prosecutor, on the briefs).

          Alexander R. Shalom argued the cause for amicus curiae American Civil Liberties Union of New Jersey Foundation (Edward L. Barocas, Legal Director, attorney; Alexander R. Shalom, Rebecca J. Livengood, Edward L. Barocas, and Jeanne M. LoCicero, on the briefs).

          Carol M. Henderson, Assistant Attorney General, argued the cause for amicus curiae Attorney General of New Jersey (Christopher S. Porrino, Attorney General, attorney; Joseph A. Glyn, Deputy Attorney General, of counsel and on the brief).

          LaVECCHIA, J., writing for the Court.

         In this appeal, the Court considers whether defendant Noah Mosley's due process rights were violated because the State relied on hearsay evidence to prove the violation of probation (VOP) charge filed against him.

         Defendant was serving a five-year term of probation when he was arrested in September 2014. Based on the circumstances underlying that arrest, the State charged him with a VOP and several new criminal offenses. Before any proceedings on the new criminal charges had taken place, the court conducted an evidentiary hearing on defendant's VOP. Detective Michael Carullo of the Edison Police Department was the only witness to testify at the hearing. Although he was not present during the events that provide the basis for defendant's charges, Detective Carullo assisted with the investigation after the events had occurred. He testified based on information that the on-scene officer, Officer Zundel, relayed in police reports about the incident. In addition to Zundel's reports, Carullo relied on a report that he had prepared concerning the investigation and conversations with other officers.

         According to Detective Carullo's testimony, at about noon on September 7, 2014, Officer Zundel of the Edison Police Department parked his unmarked police car in a local store's parking lot. Sometime later, Zundel observed what he believed to be a hand-to-hand exchange of narcotics between a minivan driver and a Mercedes driver. When each vehicle attempted to leave the parking lot, Zundel ordered them to stop. The minivan driver complied, but the Mercedes driver did not. Zundel was unable to stop the Mercedes from speeding out of the parking lot. A consent search of the minivan yielded approximately twenty bags of heroin. The driver of the minivan and a bystander to the episode in the parking lot provided descriptions of the Mercedes driver. Carullo testified that he joined Zundel in working on the case and eventually uncovered evidence that pointed to defendant as the driver of the Mercedes. Zundel was asked to view a photograph of defendant, and based on the photo, Zundel identified defendant as the Mercedes driver that he observed.

         During the VOP hearing, Detective Carullo was unable to provide details of the encounter between Zundel and defendant that led to defendant's arrest. Several times during his testimony, Carullo's recollection had to be refreshed. He read from Zundel's report. He also refreshed his recollection by reviewing his own report containing information secured from other third parties. At the close of the evidence, defense counsel objected to the State's use of hearsay and argued that the State had not carried its burden of proof on defendant's probation violation charge. The State declined to produce more evidence, arguing that hearsay is admissible in VOP hearings and that the standard of proof is lower in such hearings than in a typical criminal trial. The court agreed.

         Defendant appealed, arguing that he was denied due process by the admission and use of hearsay in the VOP hearing. The Appellate Division rejected the argument and affirmed. The panel reasoned that a trial court may rely on hearsay evidence so long as it is "demonstrably reliable." The panel determined that Carullo's testimony met that standard because he had "actively investigated defendant's actions" and had extensive experience "interviewing witnesses and gathering evidence against those being investigated."

         The Court granted certification "limited to the issue of the trial court's acceptance of hearsay testimony as proof that defendant committed a new offense in violation of probation." 228 N.J. 433 (2016).

         HELD: Hearsay is generally admissible in a VOP hearing. When assessing the State's ability to rely on hearsay to satisfy its proof obligation without contravening a defendant's due process rights, a court fundamentally should consider the State's reasons for relying on hearsay forms of evidence and the reliability of the evidence for its proposed purpose. In this matter, the State failed to provide any justification for relying on hearsay, and the hearsay evidence was not sufficiently reliable for its asserted purpose of substantiating the new criminal charges against defendant.

         1. "The court, if satisfied that the defendant has inexcusably failed to comply with a substantial requirement imposed as a condition of the order or if he has been convicted of another offense, may revoke the . . . probation and sentence or resentence the defendant, as provided in this section." N.J.S.A. 2C:45-3(a)(4) (emphasis added). The State bears the burden of proving the charges by a preponderance of the evidence. State v. Reyes, 207 N.J.Super. 126, 137 (App. Div. 1986). At the VOP hearing, a defendant has the specific rights "to hear and controvert the evidence against him, to offer evidence in his defense, and to be represented by counsel." N.J.S.A. 2C:45-4. A probationer in a VOP proceeding has the overlay of the protections of due process. For VOP hearings, the minimal process required must include "the right to confront and cross-examine adverse witnesses (unless the hearing officer specifically finds good cause for not allowing confrontation)." Morrissey v. Brewer, 408 U.S. 471, 489 (1972) . In Gagnon v. Scarpelli, 411 U.S. 778, 782 n.5 (1973), the Court spoke approvingly of the conventional use, where appropriate, of substitutes for live testimony in VOP hearings but added the reminder that "in some cases there is simply no adequate alternative to live testimony." (pp. 14-19)

         2. Similar to federal law on the issue, New Jersey courts have viewed VOP hearings as "a part of the corrections process" rather than an element of a criminal prosecution. Reyes, 207 N.J.Super. at 134. In Reyes, the Appellate Division explored the State's use of hearsay evidence to prove a VOP. Id. at 139. The Appellate Division declared "[t]he admission and consideration of reliable hearsay evidence in probation violation proceedings [to be] both fair and practical." Ibid. The panel recognized that it was unproductive and perhaps unnecessary to insist that the State could not proceed initially with hearsay evidence, and it instructed that the State could supplement its proofs as necessary when the probationer contests the State's proofs. Ibid. The panel explained its accommodation as a "fair balance of the probationer's rights with the interest of the public." Ibid. Reyes allows for flexibility for the State but is ever mindful of the need for sufficient reliable evidence to prove the factual underpinnings to a charged violation. With respect to state courts that consider the question, the overwhelming majority allow the admission of hearsay so long as the hearsay is determined to be reliable. In the federal sphere, a form of balancing test is utilized for determining the admission of hearsay evidence in VOP proceedings. (pp. 19-28)

         3. The Court adheres to the use of hearsay at VOP hearings but endorses a balancing approach that includes assessment of the reasons for the government's proceeding through the use of hearsay in addition to testing the evidence's reliability. The evidence to support the VOP charge must be reliable to meet due process concerns, and the reason for relying on hearsay informs the decision on the evidence's overall reliability. The Court adopts the factors set forth in United States v. Walker, 117 F.3d 417, 420 (9th Cir. 1997)-(1) the importance of the evidence to the court's finding; (2) the probationer's opportunity to refute the evidence; (3) the consequences for the probationer of the court's finding; (4) the difficulty and expense of procuring witnesses; and (5) the traditional indicia of reliability borne by the evidence-which each can assist the trial court in analyzing the reliability of the hearsay being offered by the State and the fairness of its use. And the court should explain its reasons for determining that the hearsay evidence is reliable for its stated purposes. (pp. 28-29)

         4. The State charged defendant with violating probation by committing another criminal offense. While normally that type of VOP charge is demonstrated through the submission of proof of a criminal conviction, the State here opted to proceed first with the VOP charge. It was incumbent on the State then to prove the new criminal charge. See Reyes, 207 N.J.Super. at 138. Defendant's ability to defend against the new criminal charges, which were the premise for the VOP charge, was undermined because the State deprived defendant of the opportunity to confront and cross-examine Zundel, or anyone else, who saw the events transpire. The hearsay evidence that the court accepted from Carullo was not reliable to prove the underlying new criminal charges that were the basis for defendant's VOP charge. Defendant was denied a hearing that met due process requirements. (pp. 29-31)

         The judgment of the Appellate Division is REVERSED.

         JUSTICE ALBIN, CONCURRING IN THE JUDGMENT, disagrees as to the evidential standard to be applied going forward. According to Justice Albin, the default position should be the application of the Rules of Evidence. If the State seeks relaxation of the evidence rules for good cause, then the balancing test set forth in Walker would be useful for deciding whether hearsay should be allowed in a probation revocation hearing.

          CHIEF JUSTICE RABNER and JUSTICES PATTERSON, FERNANDEZ-VINA, SOLOMON, AND TIMPONE join in JUSTICE LaVECCHIA's opinion. JUSTICE ALBIN filed a separate opinion concurring in the judgment.

          OPINION

          LAVECCHIA, JUSTICE.

         In this appeal, we consider whether defendant Noah Mosley's due process rights were violated because the State relied on hearsay evidence to prove the violation of probation (VOP) charge filed against him.

         Defendant's VOP hearing was atypical. He was charged with violating probation because new criminal charges were filed against him; however, the new criminal charges had not yet been adjudicated when the State requested that the court proceed and sentence defendant on the VOP. At the VOP hearing, the State advanced hearsay evidence to substantiate the new criminal charges. The State did not produce the officer who had witnessed the alleged new criminal acts for which defendant was later identified and charged as the perpetrator. Nor did the State provide justification for that failure, relying on the proposition that hearsay is admissible in probation violation hearings.

         Although we have yet to address the use of hearsay evidence in VOP hearings, several decades ago the Appellate Division determined it "fair and practical" for a court to admit "reliable hearsay evidence" in such hearings. State v. Reyes, 207 N.J.Super. 126, 139 (App. Div. 1986). Reyes established two important principles for VOP hearings. First, while there is no bar to the admission and use "of demonstrably reliable hearsay evidence . . . [a] violation may not be bottomed on unreliable evidence." Id. at 138. Second, the nature of VOP hearings calls for flexibility. Id. at 139. In respect of the latter, the Reyes panel emphasized that when a defendant is charged with "inexcusably fail[ing] to comply with a substantial requirement imposed as a condition of" probation, see N.J.S.A. 2C:45-3(a)(4), the State usually does not know whether, or what, factual aspect of a probation violation charge a defendant will contest at a VOP hearing, Reyes, 207 N.J.Super. at 139 (noting differences between proof of failure to comply and proof of legitimate excuse for that failure). The decision in Reyes elaborates on ways in which the State may initially produce evidence of a violation and then meet its ultimate burden of proving the violation by a preponderance of the evidence. Id. at 137, 139.

         Reyes's approach to the use of hearsay in probation violation hearings is both practical and protective of the due process rights of a probationer charged with a violation of probation. Building on the sound legal foundation of Reyes, we hold that hearsay is generally admissible in a VOP hearing. When assessing the State's ability to rely on hearsay to satisfy its proof obligation without contravening a defendant's due process rights, a court fundamentally should consider the State's reasons for relying on hearsay forms of evidence and the reliability of the evidence for its proposed purpose. We identify factors for a court to consider when called on to balance the respective interests of the parties concerning the State's use of hearsay in a VOP hearing.

         In this matter, the State failed to provide any justification for relying on hearsay, and the hearsay evidence was not sufficiently reliable for its asserted purpose of substantiating the new criminal charges against defendant. In fact, the hearsay was pivotal to defendant's ability to confront and test the adequacy of the evidence to support a conclusion that he committed a VOP by engaging in new criminal conduct. The sole witness at the VOP hearing was an officer who became involved in the investigation of the alleged criminal incident after it had occurred, and that witness could not attest to personal knowledge of the events that provided the basis for defendant's new criminal charges.

         In the unusual circumstances of this case, the hearsay presented through his testimony was insufficient to prove the new underlying substantive offense that was the premise for defendant's probation violation and sentence. We are constrained to reverse the Appellate Division judgment that upheld defendant's probation violation.

         I.

         A.

         Defendant was serving a five-year term of probation when he was arrested in September 2014. Based on the circumstances underlying that arrest, the State charged him with a VOP and several new criminal offenses. The new criminal charges included third-degree possession of a controlled dangerous substance, N.J.S.A. 2C:35-10(a)(1), third-degree possession of a controlled dangerous substance with intent to distribute, N.J.S.A. 2C:35-5(b)(3), third-degree possession of a controlled dangerous substance with intent to distribute near a school zone, N.J.S.A. 2C:35-7, second-degree distribution of a controlled dangerous substance within 500 feet of public housing, N.J.S.A. 2C:35-7.1, and second-degree eluding a police officer, N.J.S.A. 2C:29-2(b).

         On December 23, 2014, before any proceedings on the new criminal charges had taken place, the court conducted an evidentiary hearing on defendant's VOP. Defendant had admitted that he had been arrested on the new criminal charges and he was being held in custody for that arrest. See N.J.S.A. 2C:45-3(a)(3). However, the State wanted the court to sentence defendant on the VOP charge. Accordingly, to move forward on the State's request, the court required an evidentiary hearing on the State's proofs to substantiate the unadjudicated new criminal charges that were the premise for the VOP charge.

         Detective Michael Carullo of the Edison Police Department was the only witness to testify at the VOP hearing. Although he was not present during the events that provide the basis for defendant's charges, Detective Carullo assisted with the investigation after the events had occurred. Detective Carullo testified based on information that the on-scene officer, Officer Zundel, [1] relayed in police reports about the incident. In addition to relying on Zundel's reports, Carullo relied on a police report that he had prepared concerning the investigation and conversations he stated that he had with other officers.

         B.

         According to Detective Carullo's testimony, at about noon on September 7, 2014, Officer Zundel of the Edison Police Department parked his unmarked police car in a local store's parking lot. Sometime later, a blue Mercedes parked about two spaces away from his car. The windows of the Mercedes were rolled halfway down, and Zundel observed in the vehicle a black male driver and a white male passenger. Shortly thereafter, a minivan entered the lot and parked next to the Mercedes. The minivan's driver, a white male, got out of the minivan and entered the rear passenger side of the Mercedes. Zundel then observed what he believed to be a hand-to-hand exchange of narcotics between the minivan driver and the Mercedes driver.

         When the minivan driver exited the Mercedes and returned to the minivan, Zundel maneuvered his unmarked police vehicle to block in the Mercedes and the minivan to prevent both from leaving. When each vehicle nevertheless attempted to leave the parking lot, Zundel ordered them to stop. The minivan driver complied, but the Mercedes driver did not. Zundel drew his weapon and grabbed the Mercedes's side door handle, but he was unable to stop the Mercedes from speeding out of the parking lot.

         After securing the scene, Zundel talked with the minivan's driver, Anthony Thornton. A consent search of the minivan yielded approximately twenty bags of heroin. Thornton later gave a statement to police revealing that the person whom he met in the parking lot was known as "Black" and that Thornton had been purchasing heroin from him for over a year. Thornton also provided a physical description of the person who sold him the drugs that day.

         The police also obtained a statement from a bystander to the episode in the parking lot. Jimmy An provided an account of what he saw, along with a description of the Mercedes driver.

         Carullo testified that he joined Zundel in working on the case and eventually uncovered evidence that pointed to defendant as the driver of the Mercedes when Zundel encountered it in the parking lot. Zundel was asked to view a photograph of defendant, and based on ...


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