February 27, 2019
appeal from the Superior Court of New Jersey, Law Division,
Bergen County, Indictment No. 13-06-0793.
S. Rockoff, Assistant Deputy Public Defender, argued the
cause for appellant (Joseph E. Krakora, Public Defender,
attorney; Daniel S. Rockoff, of counsel and on the briefs).
Kennedy, Special Deputy Attorney General/Acting Assistant
Prosecutor, argued the cause for respondent (Dennis Calo,
Acting Bergen County Prosecutor, attorney; Ian C. Kennedy, of
counsel and on the brief).
Judges Koblitz, Currier and Mayer.
jury trial, defendant Sui Kam Tung appeals from the March 31,
2016 convictions for murder of his estranged wife's lover
and related charges. Defendant argues that the trial court
erred in allowing (1) evidence of his invocation of the right
to counsel, (2) references to his refusal to consent to a
search of his computer and car, and (3) testimony by the
interrogating officer that he knew defendant was lying. We
agree that these three issues combine to undermine the
integrity of the verdict and reverse.
jury found defendant guilty of first-degree murder, N.J.S.A.
2C:11-3(a)(1) and (2); second-degree aggravated arson,
N.J.S.A. 2C:17-1(a)(2); second-degree possession of a weapon
with unlawful purpose, N.J.S.A. 2C:39-4(a); second-degree
unlawful possession of a weapon, N.J.S.A. 2C:39-5(b);
second-degree desecration of human remains, N.J.S.A.
2C:22-1(a)(2); third-degree hindering by way of concealment
or destruction of evidence, N.J.S.A. 2C:29-3(b)(1);
fourth-degree tampering by destroying computer data, N.J.S.A.
2C:28-6(1); and fourth-degree stalking, N.J.S.A.
court sentenced defendant for murder to a life term, subject
to more than sixty-three years of parole ineligibility under
the No Early Release Act, N.J.S.A. 2C:43-7.2. He received a
consecutive ten-year term with a five-year parole
disqualifier for aggravated arson. The remaining convictions
either merged or the court sentenced defendant to concurrent
The March 6, 2011 Murder and Prior Events
Cantor was shot in the back of the head while in his home in
Teaneck, New Jersey. His body was placed on the bed in the
basement bedroom, doused with an accelerant, and set on fire.
Defendant was the estranged husband of Cantor's
girlfriend, S.,  and was the only suspect considered by the
Cantor had sexual relations for the first time in February
2010, in the basement bedroom of Cantor's home. Defendant
acknowledged to the police that he found out about the affair
between Cantor and S. through their email exchanges he
downloaded from S.'s computer. A computer expert who
searched defendant's computer found 299 saved emails
between Cantor and S. In early 2010, defendant, who owned a
computer store, installed software on his wife's laptop
that enabled him to record her exact keystrokes. Defendant
also created an email address and sent anonymous emails to
night of February 16, 2010, S. told defendant she was aware
that he knew about her and Cantor. Defendant asked S. where
she and Cantor had slept together, and she told him it was in
a basement bedroom of Cantor's house. Defendant told her
not to see Cantor.
February 18, defendant told S. he was going to take $2000
from their savings to buy a gun "to protect you and the
kids and myself." Their bank statement showed a cash
withdrawal for $2000. Later that day, defendant showed her a
black handgun. Defendant told the police he showed S. a
friend's gun, a "small Beretta," during this
time period. He said he gave it back to his friend.
March 2010, defendant's wife and daughters moved out of
the marital apartment. In the spring of 2010, defendant went
to Cantor's home in Teaneck three times. Defendant told
the police that on the first occasion, they sat in the living
room and spoke for about three hours. Defendant told Cantor,
"I want you to stop seeing my wife." During this
first meeting, defendant said he and Cantor went "down
in the basement . . . [b]ecause from the e-mails, I wanted to
know where they actually have
relationship." S. testified Cantor had told her of this
said the second time he went to Cantor's house was about
a month later and their conversation was brief. The third
time defendant went to speak to Cantor, Cantor was on his way
to work and did not let defendant into the house.
testified that defendant liked to go to shooting ranges.
Defendant's friend who lived in Texas testified that in
early November 2010, defendant called him and asked him
"to possibly get him a magazine for a Walther PPX"
handgun. The friend did not supply the magazine and defendant
said it was "no big deal."
March 3, 2011, S. served defendant with divorce papers.
Defendant told the police he intended to raise the grounds of
adultery and put both Cantor and S. "on the stand."
spent Sunday, March 6, the day of the murder, with his
youngest daughter. At about 8:00 p.m., defendant took her
back to S.'s apartment and spent about twenty minutes
with all three of his daughters. The middle child told
defendant she met "a guy named Robbie" who was
"mommy's friend" when she went to the museum
with S. that day. Cantor had never before met any of
defendant's children. Defendant told the police he was
not angry because "[i]t was bound to happen."
approximately 11:30 p.m. on March 6, neighbors saw a fire at
Cantor's home. His body was found in the basement. He had
been shot in the back of the head and died before the fire
was started. The police found a 380-caliber shell casing in
the basement, under the bed. The 380-caliber gun for which
defendant had asked his friend to procure a magazine in
November 2010 could be loaded and fired without a magazine.
March 7, 2011, Bergen County Prosecutor's Office
Detective James Brazofsky and Teaneck Detective Mark Fisco
interviewed defendant at a New York City police station.
Brazofsky used a small digital voice recorder because
"[t]he 23rd Precinct did not have audio and video
said that on March 6, after he dropped his daughter off with
S., he returned to his apartment, had two or three beers,
read emails, read books, and washed dishes and "[t]hat
took about an hour and a half, two hours." At about 1:00
a.m., he went to a store and bought some beer. A store clerk
later confirmed that defendant bought beer between 1:00 and
2:00 a.m. on March 7, 2011. He repeatedly denied going
anywhere else that night and said he did not leave Manhattan.
Defendant acknowledged that he learned of the relationship
between S. and Cantor by placing software on her laptop.
Fisco continued to question defendant:
There was a situation that happened last night. Okay. And I
believe that you left, at some point you left New York City
and you traveled into New Jersey last night. Okay. And I __ I
want you to be honest with us.
[DETECTIVE] FISCO: It's very important that you be honest
with us here, Tony. All right? I think some things you have
been honest with us about, other things you may have left out
and not been so honest about. Tell us about Jersey last
A: I was, uh (inaudible). I was __
Q: I __ I don't think you were home all night last night.
DETECTIVE FISCO: What time were you in Jersey last night?
A: Why would I be in Jersey? What time was I in Jersey? What
are we talking about here?
repeated that he believed defendant "went over
there" the night before and that he was acting under the
emotional stress of the divorce and financial troubles, and
he suggested that cell phone records, EZ Pass records, or
other electronic surveillance would show defendant had
traveled to New Jersey.
Q: Okay. Let me ask you this: Would you allow us, um, to have
a computer forensic examiner look at your activity last night
on the computer from, say, I don't know, 5:00 p.m. to, I
don't know, 7:00 a.m. this morning? Just to look for
activity, not to search through your personal stuff or
anything like that. Just to look at the activity on the
computer to see if __
A: I think I would speak to my lawyer about that first.
Q: Okay. That's fine. You could do that.
also asked for consent to search defendant's car,
stating, "My goal is, if you didn't do anything last
night, then there shouldn't be any evidence related to
the incident last night in __ in your car, basically."
Defendant responded repeatedly that he wanted to consult his
attorney first before agreeing to either search.
suggested that cell phone records could show defendant went
to New Jersey and defendant acknowledged that "certain
records don't lie" and that "I can't argue
against" that sort of evidence. Brazofsky then asked
defendant to admit he was in New Jersey, saying in part:
Can you be honest with me and tell me where you were last
night? Cause I'm telling you, I could see it in your
face, and I can see it in the way you're sitting there, I
can see that you're not __ you're not at home last
night. Something happened and you did something that
you're sorry about. I can see it in your eyes. Okay.
suggested that defendant was "pushed . . . over the
edge" when he learned that Cantor had contact with his
daughter. Brazofsky again told defendant, "[Y]ou went
there last night. Okay. I know you did. I believe you
again asked to search defendant's computer:
Um, why before __ and you have every right to say no, but I
just wanna ask you for your reason why you said no. Why would
__if you had nothing to hide, that you weren't in New
Jersey last night, why wouldn't you let me look at your
computer to say, oh, my gosh, look, he was home? Why would __
why wouldn't you let me go to your computer just for the
period of time that this incident took place to see if you
were on the computer?
stated that "[i]t's only a matter of time"
before "things come together," and defendant
commented, "You need to prove it." Brazofsky then
I'll be honest with you, Tony. You __you don't __ you
don't have any of the reactions of a person who's
telling me the truth. All right? I been doing this for
Do I believe that you were over there? Yeah, I believe you
went over there, cause when I asked you a question before,
you answered them like a person who's not being truthful.
Cause I told you what my answer would have been. Jim, did you
leave your house last night after you put your kids to bed?
No. I didn't go anywhere. I know for a fact I didn't
Q: Okay. You can look at my computer. You can look at my
phone. You can talk to my kids. I __ you can talk to my
neighbors. I don't care, cause I know I wasn't there.
You didn't say that once. Not __ you still haven't
said that. Okay. That's why I don't believe
you're being truthful, okay?
interview was terminated when defendant asked to call his
police collected video evidence contradicting defendant's
claim that he was home all night except for purchasing beer.
Footage from cameras located near defendant's apartment
showed defendant parking his car at about 10:10 p.m., and
walking in the direction of his apartment. About twenty
minutes later, the footage showed him leaving the apartment,
and going out of view at about 10:40 p.m., not in the
direction of his apartment.
March 8, 2011, after obtaining a search warrant for
defendant's apartment, the police seized defendant's
desktop computer. A computer expert testified that, on March
6, 2011, all activity, whether generated by a user or the
operating system, stopped on the computer at 9:48 p.m.
Computer activity began again on March 7 at 1:11 a.m. At 2:00
a.m., a user launched a program that permanently deleted a
large number of files from defendant's computer.
police searched defendant's computer store. Among other
items, they found handwritten notes that included the name of
Cantor's wife, her work address and job title as well as
Cantor's name, cell phone number, and two email
addresses. The police also seized email correspondence
between S. and Cantor, "a folder with assorted
information on" S. and Cantor, and Google Map directions
from Cantor's home in Teaneck to the apartment S. moved
into, with a date of April 12, 2010. In addition, the police
found S.'s cell phone bill dated March 5, 2010, with
calls to Cantor's cell phone highlighted.
State presented no direct evidence that defendant left
Manhattan on the night of the murder.
Use of Defendant's ...