Opinion
DOCKET NO. A-5027-13T2
07-01-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. JOY O. EBUZOR-ONAYEMI, a/k/a JOY AMADI, Defendant-Appellant.
Howard W. Bailey argued the cause for appellant. Kimberly L. Donnelly, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for respondent (Grace H. Park, Acting Union County Prosecutor, attorney; Beverly I. Nwanna, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Fuentes and Gilson. On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment No. 11-09-0889. Howard W. Bailey argued the cause for appellant. Kimberly L. Donnelly, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for respondent (Grace H. Park, Acting Union County Prosecutor, attorney; Beverly I. Nwanna, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief). PER CURIAM
A jury convicted defendant Joy Ebuzor-Onayemi of third-degree burglary, N.J.S.A. 2C:18-2, and fourth-degree falsification of medical care records, N.J.S.A. 2C:21-4.1. Defendant filed a motion for a new trial contending she had discovered documents that raised questions about the credibility of her former boyfriend who had testified against her at trial. The trial judge denied the motion for a new trial and sentenced defendant to a three-year term of probation. Defendant appeals her conviction and the denial of her motion for a new trial. We affirm.
I.
The evidence at trial established that defendant is a former employee of Our House, Inc. (Our House), a non-profit organization that provides services to developmentally disabled individuals. Our House operates group homes with staff members who supervise and assist the residents, including administering medications. Defendant was an assistant manager of Our House's Windsor Way group home in Berkeley Heights.
As part of her duties, defendant kept records of the medications and health assistance she provided to residents of Windsor Way. In February 2011, an audit of the medical records revealed errors defendant allegedly made. Defendant was advised that she would be subject to disciplinary action and a counseling meeting was scheduled for April 8, 2011. The day before that meeting, a supervisor discovered that the medical records defendant had prepared had been altered.
At the meeting on April 8, 2011, defendant was presented with copies of the erroneous medical records and a confrontation ensued. Defendant became angry and demanded to see the record she was accused of altering. Ultimately, defendant was fired, she was instructed to turn over her keys to the Windsor Way home, and the police were called because the confrontation became physical. Thereafter, defendant allegedly went to the Windsor Way home and took medical records.
At trial, the State called defendant's former boyfriend M.O. as a witness. M.O. testified that on April 8, 2011, defendant came to see him at work and told him she had had a disagreement with her co-workers concerning medical records and she had been fired. M.O. also testified that defendant told him that she had turned over the wrong key and she had then gone to the group home and taken some documents. Defendant then handed M.O. a black nylon shopping bag that contained documents and asked M.O. to hold the bag for her.
We use initials to protect the confidentiality of witnesses.
M.O. works at the Union County Courthouse delivering mail. --------
Several months later, defendant asked M.O. to get rid of the bag. Although M.O. told defendant he had discarded the bag, he actually continued to hold it. In June 2011, M.O. and defendant ended their romantic relationship, but they continued to live together. Thereafter, their relationship became contentious and they filed several legal actions against each other, including making allegations of harassment and domestic violence.
In 2013, a detective with the Union County Prosecutor's Office came to see M.O. and asked if he had any information relating to the criminal charges that had been filed against defendant. M.O. initially told the detective that he had no such information, but several months later he disclosed that he had the bag that defendant had given him on April 8, 2011. M.O. then turned over the bag to the detective. The bag contained medical records taken from Windsor Way and two keys to that home. The bag and its contents were introduced as evidence at defendant's criminal trial.
Defendant testified at her trial and denied taking the medical records. She denied going to the Windsor Way group home after she was fired on April 8, 2011. Defendant also testified about a confrontation she had had with employees at Our Home, thereby suggesting that they had motivations to make false accusations against her. In cross-examining defendant, the assistant prosecutor questioned defendant concerning a prior conviction for simple assault. Defense counsel objected and the trial judge instructed the jury to disregard the question and answer.
After all evidence had been presented and the jury had been instructed, the State advised the trial judge that the address used in the count of the indictment charging defendant with burglary was incorrect. The trial judge granted the prosecutor's oral application to amend the indictment accordingly. The judge's instructions to the jury were also amended to reflect the correct address of the location that defendant had allegedly burglarized. Following deliberations, the jury convicted defendant of burglary and falsification of medical care records.
Defendant filed a motion for a new trial relying on two arguments. First, defendant asserted she had recently discovered two passports and an international driver's license of her boyfriend which contained a name different than the name he currently used. Defendant argued that she should be permitted to have a new trial so that she could use this information to impeach her former boyfriend's credibility. Second, she argued the prosecutor engaged in misconduct by questioning her about her prior conviction for simple assault. After hearing arguments, the trial judge denied the motion. The trial judge reasoned that the documents did not qualify as newly discovered evidence since defendant had access to them prior to trial. The judge also found that the alleged newly discovered evidence would not have changed the jury's verdict because the documents went to impeachment of a witness and were not material enough to the challenge her conviction. With respect to the prosecutor's question concerning defendant's conviction for a disorderly person offense, the trial judge noted he had given a curative instruction admonishing the jurors to disregard this issue. Thus, the trial court found no legal basis for a new trial. Defendant now appeals.
II.
On appeal, defendant makes three arguments:
Point I — The Court Erred When It Denied The Motion For A New Trial, Without Holding An Evidentiary Hearing, And Without Evaluating The Sufficiency Of The Remainder Of The State's Proofs To Support The Verdict If The Testimony Of The Essential State Witness Had Been Rejected By The Jury.
Point II — The Court Erred When It Permitted The Indictment To Be Amended To Reflect The Changed Address Of The Alleged Burglary After The Conclusion Of The Jury Instructions And Immediately Prior To The Beginning Of Jury Deliberations, Without Requiring Any Evidence To Be Placed Before The Jury To Justify Or Support The Changed Location.
Point III — The Court Erred When It Gave The Jury A Very General 'Curative' Instruction In Response To The State, In Disregard Of The Instruction Of The Court, Using A
Disorderly Persons Conviction To Impeach The Appellant In Front Of The Jury During Cross Examination.
Defendant first argues that the trial court erred in denying her motion for a new trial without holding an evidentiary hearing concerning the documents that she believes would have undercut her former boyfriend's credibility.
A motion for a new trial based upon newly discovered evidence rests within the sound discretion of the trial judge. State v. Russo, 333 N.J. Super. 119, 137 (App. Div. 2000). We will defer to the trial judge's exercise of that discretion "unless a clear abuse has been shown." Ibid. Evidence is "newly discovered" and requires a new trial when it is "(1) material to the issue and not merely cumulative or impeaching or contradictory; (2) discovered since the trial and not discoverable by reasonable diligence beforehand; and (3) of the sort that would probably change the jury's verdict if a new trial were granted." State v. Nash, 212 N.J. 518, 549 (2013) (quoting State v. Carter, 85 N.J. 300, 314 (1981)).
Applying these standards, we see no error in the denial of defendant's motion for a new trial. First, the trial judge determined that the alleged newly discovered evidence was evidence that was in defendant's custody at all times during the trial. Indeed, in the certification in support of her motion for a new trial, defendant acknowledged that she had the passport and international driver's license of her former boyfriend well before trial, but she only allegedly focused on them after the trial. We agree with the trial judge that this evidence would have been available through the exercise of reasonable diligence before the trial's completion. We also agree with the trial judge that given that the evidence allegedly went to the witness's credibility, the evidence was not "of great significance and would probably not alter the outcome of [the] verdict." State v. Ways, 180 N.J. 171, 189 (2004).
Next, defendant contends that the trial court erred when it permitted the indictment to be amended to reflect the correct address of the home that was allegedly burglarized. We review a trial court's decision to amend an indictment under an abuse of discretion standard. See State v. Reid, 184 N.J. Super. 263, 266 (App. Div.), certif. denied, 75 N.J. 520 (1977). The rules governing criminal practice expressly permit the amendment of an indictment to correct errors in form or description. Accordingly, Rule 3:7-4 provides:
The court may amend the indictment or accusation to correct an error in form or the description of the crime intended to be charged or to charge a lesser included offense provided that the amendment does not charge another or different offense from
that alleged and the defendant will not be prejudiced thereby in his or her defense on the merits. Such amendment may be made on such terms as to postpone the trial, to be had before the same or another jury, as the interest of justice requires.
Our Supreme Court has long recognized the power of trial courts to amend an indictment. See State v. Stefanelli, 78 N.J. 418, 429 (1979) ("Where . . . time is not crucial either to the defense to or prosecution of a charged offense, an amendment changing or correcting a date is not objectionable."); State v. Witte, 13 N.J. 598, 607 (1953) ("The critical inquiry is whether the amendment would charge an offense not presented by the grand jury."), cert. denied, 347 U.S. 951, 74 S. Ct. 675, 98 L. Ed. 2d 1097 (1954).
Importantly, amendments seeking to correct the place of the alleged commission of the crime are allowed as being of form, not substance. See State v. Connolly, 120 N.J. Super. 511, 516 (App. Div. 1972), certif. denied, 111 N.J. 588 (1988); see also Pressler & Verniero, Current N.J. Court Rules, comment 3 on R. 3:7-4 (2016) ("The specification of a fact related to the commission of the crime may be amended if a nonessential allegation is involved.").
Here, the indictment inadvertently used the wrong address for the Windsor Way home that defendant was alleged to have burglarized. There is no allegation that defendant did not understand the specific Windsor Way home that was alleged to have been burglarized throughout the proceedings, including during the trial. Accordingly, correcting the address and allowing the indictment to be amended did not affect defendant's substantive rights. Importantly, the amendment did not alter the substance of the underlying offense. Thus, defendant has shown no prejudice resulting from the amendment, and we discern no abuse of discretion.
Finally, defendant contends that the trial court erred when it gave the jury a "very general" curative instruction concerning the prosecutor's questioning of defendant on her prior conviction for simple assault. In general, we review evidentiary rulings for abuse of discretion. State v. Nantambu, 221 N.J. 390, 402 (2015). Where defendant has raised no objection to a curative instruction, however, we review the instruction for plain error. R. 1:7-2; R. 2:10-2; see also State v. McKinney, 223 N.J. 475, 494 (2015). Here, defendant objected to the prosecutor's questioning and the trial judge sustained that objection. The trial judge then gave the jury the following curative instruction to which defendant did not object: "You are not to consider anything that was said by the prosecutor here in any way in your deliberations."
Unless the instruction was "clearly capable of producing an unjust result," R. 2:10-2, it is not grounds for reversal of the jury verdict. See State v. Camacho, 218 N.J. 533, 554 (2014). Given the record in this case, we are satisfied that any potential for prejudice from the prosecutor's question was cured by the judge's clear and firm instructions to the jury. After the assistant prosecutor asked defendant about her disorderly persons conviction for simple assault, defense counsel objected.
The court instructed the jury to disregard the question and the answer. The trial judge also asked defense counsel whether or not he was moving for a mistrial and defense counsel stated that he was only seeking a curative instruction and not a mistrial. The judge gave the curative instruction without objection from defense counsel. Accordingly, the trial judge found that any prejudice that may have been caused by the prosecutor's question was counteracted by the curative instruction. We agree. There is no evidence in the record to indicate that the jury was unable to follow any of the trial judge's instruction or to suggest that any alleged error was "clearly capable of producing an unjust result." R. 2:10-2.
In summary, we reject all of defendant's arguments and discern no errors that would warrant reversal of the jury verdict.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION