Opinion
DOCKET NO. A-2606-11T4
05-06-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. JAMES P. CURLEY, Defendant-Appellant.
Brian J. Neary argued the cause for appellant (Law Offices of Brian J. Neary, attorneys; Mr. Neary, of counsel and on the briefs; Raphael M. Rosenblatt, on the briefs.) Anthony C. Talarico, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for respondent (Gurbir S. Grewal, Acting Bergen County Prosecutor, attorney; Mr. Talarico, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Reisner, Hoffman and Whipple. On appeal from Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 08-04-0742. Brian J. Neary argued the cause for appellant (Law Offices of Brian J. Neary, attorneys; Mr. Neary, of counsel and on the briefs; Raphael M. Rosenblatt, on the briefs.) Anthony C. Talarico, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for respondent (Gurbir S. Grewal, Acting Bergen County Prosecutor, attorney; Mr. Talarico, of counsel and on the brief). PER CURIAM
This case arises from a 2008 traffic stop that resulted in the arrest of defendant James Curley, after he attempted to flee from police. Defendant was subsequently convicted by a jury of resisting arrest, simple assault, and unlawful possession of a weapon. He now appeals from the October 14, 2011 judgment of conviction entered by the Law Division, arguing that the trial court committed multiple procedural and substantive errors. We affirm.
I.
We discern the following facts from the trial record. On January 25, 2008, defendant, who was driving a rental car, was pulled over by Officer Brett Rothenburger of the Ramsey Police Department (Ramsey PD). Officer Rothenburger performed the traffic stop because the rental company, Enterprise Rent-A-Car (Enterprise), had reported the car as stolen the previous day. During a routine call to dispatch, Officer Rothenburger learned that defendant was a wanted fugitive out of New York. Additional police officers arrived at the scene as backup.
Officer Rothenburger asked defendant and his brother Joseph, who was in the passenger seat, to exit the vehicle. After exiting the vehicle, defendant started running down the road in an attempt to flee from the scene. After running a short distance, defendant turned to face the officers, raising his fists and assuming a fighting stance. The officers were able to subdue defendant; however, defendant struggled and Officer Rothenburger suffered minor cuts and bruises. The police impounded the rental car defendant was driving. Upon receiving consent from an Enterprise employee, they searched the vehicle and found, among other things: three .50 caliber rifles; two pellet guns; a bullet-proof vest; ammunition canisters; and a black ski mask.
On April 30, 2008, defendant was indicted on charges of fourth-degree unlawful taking of a motor vehicle, N.J.S.A. 2C:20-10(b); third-degree theft of services, N.J.S.A. 2C:20-8; third-degree resisting arrest, N.J.S.A. 2C:29-2(a)(3)(a); third-degree aggravated assault, N.J.S.A. 2C:12-1(b)(5)(a); third-degree unlawful possession of a loaded weapon, N.J.S.A. 2C:39-5(c)(2); third-degree unlawful possession of a firearm, N.J.S.A. 2C:39-5(c)(1); third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b); and fourth-degree unlawful possession of a weapon under circumstances not manifestly appropriate for such lawful uses as it may have, N.J.S.A. 2C:39-5(d).
Defendant represented himself at his jury trial, and elected to testify on his own behalf. Defendant's theory at trial was that his arrest was the product of a conspiracy. Defendant had once been a police officer with the Ramapo Police Department (Ramapo PD) in New York, but had been on disability leave for the previous eighteen years. Defendant claimed that the Ramapo PD orchestrated the events leading to his arrest in attempt to force him off the payroll. He further testified that he fled from the police because he saw Detective John Lynch of the Ramapo PD at the scene. Defendant said he believed Detective Lynch intended to kill him, and that he surrendered peacefully once he was safely away from Detective Lynch. Defendant further claimed that Detective Lynch visited him while he was detained at the Ramsey PD headquarters, and offered to "help this go away" if defendant resigned from the Ramapo PD.
Standby counsel was provided by the Office of the Public Defender.
At least twice during the traffic stop, defendant attempted to show officers an old badge, claiming that he was a police officer.
The jury found defendant guilty of resisting arrest, simple assault as a lesser-included offense of aggravated assault, and two counts of unlawful possession of a weapon. The jury acquitted defendant of the remaining charges. The trial judge sentenced defendant to time-served, which amounted to 575 days of confinement.
II.
On November 25, 2011, defendant filed his notice of appeal. Defendant presents the following arguments for consideration:
POINT A
THE PROSECUTION'S DISCOVERY VIOLATIONS WARRANT VACATING MR. CURLEY'S CONVICTIONS.
1. Rules Governing Discovery
2. The Prosecution's Failures Were Not Limited to a Failure to Produce Evidence
3. If This Court Does Not Grant a New Trial, In the Alternative It Should Grant an Evidentiary Hearing to Determine What Discovery Exists and Was Not Properly Produced by the Prosecution
POINT B
THE CASE SHOULD BE DISMISSED BECAUSE THE PROSECUTOR VIOLATED THE PROVISIONS OF THE AGREEMENT ON DETAINERS ACT, N.J.S.A. 2A:159A-1.
1. The Case Was Not Tried Within the 180-Day Statutory Requirement
2. The State Should Not be Permitted to Execute [an] "End Around" [of] the Anti-Shuttling Statute By "Erroneously" Calendaring a Court Date
POINT C
THE TRIAL PROCESS WAS PREJUDICIAL TO MR. CURLEY AND IMPROPER.
1. The Process of Mr. Curley's Direct Examination Was Prejudicial and Designed to Make Him Look Ridiculous and Unbalanced
2. Standby Counsel Failed to Intervene to Protect Mr. Curley's Due Process Rights
3. Failure to Compel Sgt. Lynch of the Ramapo Police Department to Testify Prejudiced Mr. Curley's Defense
POINT D
THE PROSECUTION FAILED TO PROVE THE SUBSTANTIVE ELEMENTS OF THE CRIMES FOR WHICH MR. CURLEY WAS ACCUSED AND CONVICTED.
1. There Was No Evidence of Simple Assault by Mr. Curley
2. There Was No Evidence of "Knowing Possession" Sufficient to Prove Unlawful Possession of A Weapon
POINT E
CUMULATIVE ERRORS AT TRIAL DEPRIVED MR. CURLEY OF A FAIR TRIAL AND WARRANT REVERSAL OF HIS CONVICTIONS.
We address these arguments in turn. Defendant first argues that the prosecutor improperly withheld six pieces of evidence from defendant: (1) evidence of Officer Rothenburger's cell phone conversations; (2) Detective Lynch's cellphone records and interview statements; (3) radio transmissions and video tapes by police officers involved in the traffic stop and arrest; (4) "sally port" tapes; (5) a complete, unedited copy of the videotape from Officer Rothenburger's dashboard camera; and (6) fingerprint and ballistic reports for weapons seized from his vehicle. Defendant argues that these alleged discovery violations deprived him of due process, warranting reversal of his convictions. Alternatively, he requests a remand for an evidentiary hearing.
The State has a "constitutional obligation to provide criminal defendants with exculpatory evidence in the State's possession[.]" State v. Marshall, 148 N.J. 89, 154, cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88 (1997). "[T]he suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." State v. Knight, 145 N.J. 233, 245 (1996) (quoting Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 1196-97, 10 L. Ed. 2d 215, 218 (1963)). In order to make a Brady claim, a defendant must show three criteria: "(1) the prosecution suppressed evidence; (2) the evidence is favorable to the defense; and (3) the evidence is material." State v. Martini, 160 N.J. 248, 268 (1999) (citation omitted).
As to the first factor, the "disclosure rule applies to information of which the prosecution is actually or constructively aware." State v. Nelson, 330 N.J. Super. 206, 213 (App. Div. 1998). The lack of actual awareness does not relieve the State of its Brady obligations because the prosecutor has a duty to learn of any favorable evidence known to others acting on the government's behalf. Kyles v. Whitley, 514 U.S. 419, 437, 115 S. Ct. 1555, 1567, 131 L. Ed. 2d 490, 508 (1995).
The second Brady factor is often presumed and few courts have considered exactly what must be shown in order to establish that withheld evidence is favorable to the defendant. Evidence found to be favorable has generally involved information that impeaches the testimony of a government witness. See State v. Henries, 306 N.J. Super. 512, 533 (App. Div. 1997). Favorability is not limited to impeachment, however, and it has been recognized in cases where evidence simply bolsters a defendant's claims. See State v. Nelson, 155 N.J. 487, 497 (1998), cert. denied, 525 U.S. 1114, 119 S. Ct. 890, 142 L. Ed. 2d 788 (1999).
The third Brady factor involves the materiality of the evidence that was withheld. "[E]vidence is material for Brady purposes 'if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.'" Marshall, supra, 148 N.J. at 156 (quoting United States v. Bagley, 473 U.S. 667, 682, 105 S. Ct. 3375, 3383, 87 L. Ed. 2d 481, 494 (1985)). "A 'reasonable probability' is a probability sufficient to undermine confidence in the outcome." Nelson, supra, 155 N.J. at 500. As our Supreme Court has stated:
[A] showing of materiality does not require demonstration by a preponderance that disclosure of the suppressed evidence would have resulted ultimately in the defendant's acquittal. Rather, the question is whether in the absence of the undisclosed evidence the defendant received a fair trial, "understood as a trial resulting in a verdict worthy of confidence."
[Ibid. (citation omitted) (quoting Kyles, supra, 514 U.S. at 434, 115 S. Ct. at 1565-66, 131 L. Ed. 2d at 506).]
In applying the materiality test "where a conviction has followed a full trial, we assess the strength of the State's case, and determine whether introduction of the suppressed evidence would probably have changed the jury's verdict." State v. Parsons, 341 N.J. Super. 448, 455 (App. Div. 2001) (citation omitted).
After careful review, we conclude that defendant cannot satisfy the test set forth in Brady for any of the discovery items purportedly withheld by the prosecutor. Specifically, we hold that even if the prosecutor did withhold discovery that would have benefited defendant at trial, such discovery was not material to the outcome of this case. Sufficient evidence was presented at trial to support defendant's convictions for resisting arrest, simple assault, and unlawful possession of a weapon. The evidence that defendant claims to exist, would not negate the following uncontroverted evidence presented at trial: defendant was driving a rental car containing several unregistered firearms; defendant attempted to flee after the police stopped his vehicle; and defendant intentionally engaged in a physical struggle with Officer Rothenburger, causing him injury. None of the purportedly-withheld discovery would change those facts; therefore, we find no basis to overturn defendant's convictions based on any alleged discovery violations.
Upon review of the record, we note that several discovery items alleged to have been withheld by the prosecutor simply did not exist.
Defendant next argues that the prosecutor violated the Interstate Agreement on Detainers Act (IAD), N.J.S.A. 2A:159A-1 to -15, warranting dismissal of his charges. The IAD is an interstate compact between forty-eight states, including New Jersey, that addresses the transfer of prisoners from the jurisdiction of their imprisonment (the "sending state"), in order to face charges pending against them in another state (the "receiving state"). See New York v. Hill, 528 U.S. 110, 111, 120 S. Ct. 659, 662, 145 L. Ed. 2d 560, 564 (2000); see also U.S. Const. art. I, § 10, cl. 3 ("No State shall, without the Consent of Congress, . . . enter into any Agreement or Compact with another State . . . ."); 4 U.S.C.A. § 112 (approving the IAD); N.J.S.A. 2A:159A-1 to -15 (adopting the IAD). Its purpose is "to encourage the expeditious and orderly disposition of such [pending] charges and determination of the proper status of any and all detainers based on untried indictments, informations or complaints." N.J.S.A. 2A:159A-1. Failure to comply with the time limitations of the IAD requires dismissal of the indictment, with prejudice. N.J.S.A. 2A:159A-5(c).
We first address defendant's argument that he was not tried within the IAD's 180-day statutory requirement. Specifically, the IAD, as adopted in New Jersey, states:
Whenever a person has entered upon a term of imprisonment in a penal or correctional institution of a party State, and whenever during the continuance of the term of imprisonment there is pending in any other party State any untried indictment, information or complaint on the basis of which a detainer has been lodged against the prisoner, he shall be brought to trial within 180 days after he shall have caused to be delivered to the prosecuting officer and the appropriate court of the prosecuting officer's jurisdiction written notice of the place of his imprisonment and his request for a final disposition to be made of the indictment, information or complaint: provided that for good cause shown in open court, the prisoner or his counsel being present, the court having jurisdiction of the matter may grant any necessary or reasonable continuance.
[N. J.S.A. 2A:159A-3(a)]
We have interpreted this statute to permit trial courts to grant a continuance, on good cause shown, "at any time prior to an actual entry of an order dismissing the indictment . . . ." State v. Lippolis, 107 N.J. Super. 137, 147 (App. Div. 1969) (Kolovsky, J.A.D., dissenting), rev'd on dissent, 55 N.J. 354 (1970). The requirement that defendant or his counsel be present "is directed primarily, if not indeed exclusively, to prosecution requests that have not explicitly been agreed to by the defense." Hill, supra, 528 U.S. at 116, 120 S. Ct. at 665, 145 L. Ed. 2d at 567. This ensures an adequate appellate record, protects the defendant's right to a speedy trial, and "guarantee[s] that the State does not extend the expiration dates arbitrarily or capriciously in derogation of [the] defendant's rights without his knowledge and the ability to be heard." State v. Miller, 299 N.J. Super. 387, 398 (App. Div.), certif. denied, 151 N.J. 464 (1997). Importantly, the 180-day limit in the IAD can be waived by a defendant subject to its provisions. Hill, supra, 528 U.S. at 114-15, 120 S. Ct. at 663-64, 145 L. Ed. 2d at 566-67.
By letter dated February 2, 2010, defendant made a request to the Law Division in Bergen County to be tried on the criminal charges stemming from the January 25, 2008 traffic stop. Assuming, for the sake of argument, that the IAD applied at that time, the 180-day window opened on February 2, 2010, and would have closed in early August 2010.
The record is unclear whether defendant was in federal custody on February 2, 2010. On March 19, 2009, a federal jury convicted defendant of stalking and harassing his wife in 2006; however, defendant was not sentenced on these convictions until July 29, 2010. See United States v. Curley, 639 F.3d 50, 53, 56 (2d Cir. 2011).
However, both through his pretrial counsel, and on his own behalf upon electing to proceed pro se, defendant consented to tolling the 180-day IAD period through August 31, 2011. Trial began prior to that date, with jury selection on August 16 and 17, 2011, and opening statements on August 18, 2011. As defendant's trial began well before the consented-to date, we discern no violation of the IAD's temporal requirements.
Next, we address defendant's contention that the prosecutor performed an "end-around" of the IAD's anti-shuttling provisions by having him brought to court in Bergen County on a day he was mandated to appear in federal court in New York. The anti-shuttling provision states:
If trial is not had on any indictment, information or complaint contemplated hereby prior to the return of the prisoner to the original place of imprisonment, such indictment, information or complaint shall not be of any further force or effect, and the court shall enter an order dismissing the same with prejudice.Violation of the IAD's anti-shuttling provision requires dismissal with prejudice, even when the violation may appear technical. State v. Glaspie, 429 N.J. Super. 558, 567 (App. Div.), certif. denied, 216 N.J. 366 (2013).
[N. J.S.A. 2A:159A-3(d).]
Defendant asserts that a May 9, 2011 court date in Bergen County, which was scheduled in error, was merely scheduled as a pretext to avoid his return to federal custody in New York on that date. In effect, defendant is arguing that the anti-shuttling provision was violated because he was not shuttled out of New Jersey. The IAD, however, does not support any such argument. Defendant submits no legal authority for his proposition that a scheduling error that requires a defendant to remain in a receiving state constitutes an "end around" of the anti-shuttling provision. Absent any evidence indicating that this scheduling error was an intentional effort to circumvent the statute, we discern no misconduct.
We next address defendant's argument that he did not receive due process because the trial judge required him, over his objection, to provide his own testimony in question-and-answer format. Trial judges have broad discretion in controlling their courtrooms. State v. Tedesco, 214 N.J. 177, 188-89 (2013). That discretion applies to the logistics and atmosphere under which evidence is presented to the jury. See, e.g., State v. Zhu, 165 N.J. 544, 553-58 (2000) (finding that defendants were not deprived of a fair trial based upon heightened security measures taken to secure courtroom during trial); State v. T.E., 342 N.J. Super. 14, 28-35 (App. Div.) (finding that a trial court did not err in permitting an adult support person to sit in close proximity to a young sexual abuse victim during the victim's testimony), certif. denied, 170 N.J. 86 (2001); State v. Cook, 330 N.J. Super. 395, 415 (App. Div.) (finding that a trial court did not abuse its discretion in refusing to permit a pro se capital murder defendant to approach a witness, walk around the courtroom, or approach the bench for sidebar conferences), certif. denied, 165 N.J. 486 (2000).
Indeed, N.J.R.E. 611(a) expressly provides that:
The court shall exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to (1) make the interrogation and presentation effective for the ascertainment of the truth, (2) avoid needless consumption of time, and (3) protect witnesses from harassment or undue embarrassment.
Defendant has not cited any reported cases precluding a trial court from compelling a pro se litigant to testify in the question-and-answer format. Following our own independent review, we find no abuse of discretion in the trial court's application of this method of examination. Contrary to defendant's argument, we do not find that the requirement prejudiced the presentation of his defense.
We note that several jurisdictions have accepted the question-and-answer method for pro se litigant-witnesses. See, e.g., United States v. Beckton, 740 F.3d 303, 306-07 (4th Cir.), cert. denied, ___ U.S. ___, 134 S. Ct. 2323, 189 L. Ed. 2d 199 (2014); United States v. Nivica, 887 F.2d 1110, 1120-23 (1st Cir. 1989), cert. denied, 494 U.S. 1005, 110 S. Ct. 1300, 108 L. Ed. 2d 477 (1990); Hutter N. Trust v. Door Cnty. Chamber of Commerce, 467 F.2d 1075, 1078 (7th Cir. 1972); Pietrangelo v. Wilmer Cutler Pickering Hale & Dorr, LLP, 68 A.3d 697, 717 (D.C. Ct. App. 2013); State v. Joyner, 848 P.2d 769, 774 (Wash. Ct. App. 1993).
Finally, we reject defendant's claim that his convictions for simple assault and weapons possession were against the weight of the evidence. "[T]he issue of whether a jury verdict was against the weight of the evidence shall not be cognizable on appeal unless a motion for a new trial on that ground was made in the trial court." R. 2:10-1. Defendant filed no such motion in the trial court.
Although we need not entertain a weight-of-the-evidence argument in the absence of a new trial motion, we may nevertheless choose to do so in the interest of justice, particularly in criminal appeals, because the "evidence may implicate constitutional rights which are not at stake in a civil appeal." Fiore v. Riverview Med. Ctr., 311 N.J. Super. 361, 363 n.1 (App. Div. 1998) (citations omitted). When substantively reviewing a jury's verdict, we accept all the supporting evidence and all permissible inferences therefrom as true. Bell Atl. Network Servs., Inc. v. P.M. Video Corp., 322 N.J. Super. 74, 83 (App. Div.) (citation omitted), certif. denied, 162 N.J. 130 (1999). As our Supreme Court stated in State v. Afanador, "[f]aith in the ability of a jury to examine evidence critically and to apply the law impartially serves as a cornerstone of our system of criminal justice." 134 N.J. 162, 178 (1993). "Unless no reasonable jury could have reached such a verdict, a reviewing court must respect a jury's determination." Ibid.
Here, the evidence at trial was sufficient to establish defendant's guilt of simple assault because Officer Rothenburger testified that defendant struck him while resisting arrest. See, e.g., State v. Stull, 403 N.J. Super. 501, 505-07 (App. Div. 2008) (describing evidence sufficient to establish guilt of simple assault).
The evidence at trial was also sufficient to establish defendant's guilt of unlawful possession of a weapon. Defendant does not dispute that he did not have the requisite permit or firearms identification card to possess the weapons at issue. Rather, he contends there was insufficient evidence to establish his knowing possession of the weapons. We disagree.
Possession can be either actual or constructive. For constructive possession, which can be jointly shared by several persons, "[p]hysical or manual control of
the proscribed item is not required as long as there is an intention to exercise control over it manifested in circumstances where it is reasonable to infer that the capacity to do so exists." Criminal possession signifies "intentional control and dominion, the ability to affect physically and care for the item during a span of time," accompanied by knowledge of its character. As a "general proposition," criminal possession may not be inferred from defendant's mere presence at the location where the contraband was found. To justify such an inference there must be "other circumstances or statements of the defendant tending to permit such an inference to be drawn."
[State v. Shipp, 216 N.J. Super. 662, 664-65 (App. Div. 1987) (citations omitted) (quoting State v. Brown, 80 N.J. 587, 593, 597 (1979); State v. Reed, 34 N.J. 554, 557 (1961)).]
The circumstances of this case support the jury's conclusion that defendant knowingly possessed the weapons. Defendant had rented the vehicle in which the weapons were found. In addition to the weapons in the trunk, the police found: instruments necessary to maintain the weapons, loose ammunition, a bullet proof vest, and a black ski mask. Ammunition canisters were found in the front passenger compartment of the car, where defendant and his brother were seated. Further, there was testimony regarding defendant's extreme nervousness during the traffic stop, and his flight from the scene. In his testimony, defendant claimed the weapons had been placed in the vehicle without his knowledge. However, the jury was free to reject that explanation as lacking credibility.
As a corollary to our analysis regarding the specific issues previously addressed, with no finding of error, we reject defendant's argument that cumulative errors deprived him of a fair trial. We find defendant's remaining arguments to lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION