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State v. Tung

Superior Court of New Jersey, Appellate Division

June 28, 2019

STATE OF NEW JERSEY, Plaintiff-Respondent,
v.
SUI KAM TUNG, a/k/a TONY TUNG, Defendant-Appellant.

          Argued February 27, 2019

          On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 13-06-0793.

          Daniel 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).

          Ian C. 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).

          Before Judges Koblitz, Currier and Mayer.

          OPINION

          KOBLITZ, P.J.A.D.

         After a 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.

         The 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. 2C:12-10(b).[1]

         The 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 terms.

         I. The March 6, 2011 Murder and Prior Events

         Robert 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., [2] and was the only suspect considered by the police.

         S. and 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 Cantor.

         On the 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.

         On 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.

         In 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."[3] S. testified Cantor had told her of this three-hour visit.

         Defendant 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.

         S. 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."

         On 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."

         Defendant 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."

         At 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.

         II. Defendant's Statement

         On 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 recording capabilities."

         Defendant 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 night.
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?

         Brazofsky 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.

         Brazofsky asked:

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.

         Brazofsky 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.

         Brazofsky 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.

         Brazofsky 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 did."

         Brazofsky 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?

         Brazofsky stated that "[i]t's only a matter of time" before "things come together," and defendant commented, "You need to prove it." Brazofsky then stated:

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 [fifteen] years.

         Brazofsky again stated:

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 go anywhere.
A: Um.
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?

         The interview was terminated when defendant asked to call his lawyer.

         III. The Investigation

         The 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.

         On 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.

         The 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.

         The State presented no direct evidence that defendant left Manhattan on the night of the murder.

         IV. Use of Defendant's ...


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