Opinion
DOCKET NO. A-2620-13T2
03-01-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. ANDRE LARKIN, Defendant-Appellant.
Robert J. DeGroot, attorney for appellant (Oleg Nekritin, of counsel and on the brief). Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Jane Deaterly Plaisted, 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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Yannotti and St. John. On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 07-07-2538. Robert J. DeGroot, attorney for appellant (Oleg Nekritin, of counsel and on the brief). Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Jane Deaterly Plaisted, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant Andre Larkin was found guilty of providing a law enforcement officer false information, with the purpose of hindering the apprehension or prosecution of another person, contrary to N.J.S.A. 2C:29-3a(7). Defendant appeals from the judgment of conviction dated January 11, 2012, and an order dated May 30, 2012, declaring that defendant's employment with the New Jersey Department of Corrections (NJDOC) is forfeited pursuant to N.J.S.A. 2C:51-2a(1). For the reasons that follow, we affirm.
I.
An Essex County grand jury charged defendant with second-degree conspiracy to violate the narcotics laws, N.J.S.A. 2C:5-2 (count one); third-degree possession of a controlled dangerous substance (CDS), cocaine, N.J.S.A. 2C:35-10a(1) (count two); first-degree possession of CDS, cocaine, in a quantity of five ounces or more, N.J.S.A. 2C:35-5b(1) (count three); second-degree possession of CDS, cocaine, with intent to distribute within 500 feet of a public housing facility, a public park, or a public building, N.J.S.A. 2C:35-7.1 (count four); third-degree unlawful possession of a firearm, N.J.S.A. 2C:39-5b (count five); second-degree possession of a firearm while in the course of committing, or attempting to commit, a narcotics offense, N.J.S.A. 2C:39-4.1 (count six); second-degree knowingly refraining from performing a duty imposed by law or clearly inherent in the nature of his duties as a public servant, N.J.S.A. 2C:30-2b (counts seven, ten and thirteen); fourth- degree making a false statement under oath or equivalent affirmation, N.J.S.A. 2C:28-2a (counts eight and eleven); and third-degree giving false information to law enforcement officers, with the purpose of hindering apprehension, prosecution, conviction, or punishment of another for an offense, N.J.S.A. 2C:29-3a(7) (counts nine and twelve).
Counts nine and twelve were downgraded to disorderly persons offenses, and tried before the judge, sitting without a jury. Count nine pertained to false information allegedly given to law enforcement officers on December 28, 2005. Count twelve related to false information allegedly given to the officers on February 2, 2006.
We briefly summarize the evidence presented at trial. In December 2005, two individuals were shot in the parking lot of the Fox Trap bar in Irvington. One of those individuals, Todd Allen Roberts, was killed. Detective Michael Recktenwald was the on-call homicide detective in the Essex County Prosecutor's Office (ECPO) at the time of the shooting. He interviewed persons at the scene, and learned that the bar had a surveillance system, with cameras inside and outside the building.
Recktenwald obtained a copy of the video footage and reviewed it. The video showed two persons arrive in a BMW. Recktenwald described the driver of the BMW as extremely heavy. The two individuals entered the bar and became involved in a fight. Later, they exited and became involved in the shooting. The video shows the individuals racking guns, a "muzzle flash," and gunfire. Roberts was shot and he collapsed.
Recktenwald said that after the shooting, Ahmmad Johnson appeared at the Fox Trap bar. Johnson said the car was his and he wanted to take it out of the lot. He was not permitted to do so. The BMW was towed to the police impound lot in Irvington. Recktenwald identified two photos of the BMW in the bar's parking lot. He also described Johnson as tall and thin.
Troys Haley, a security guard at the Fox Trap bar, was present when the shooting took place. He was inside the bar at the time and heard gun shots. He locked the doors to the bar and waited for the police to arrive. Haley testified that he was familiar with a patron of the bar known as "L", who drove a gray BMW, which looked like the vehicle shown in the photo of the shooting taken from the surveillance video. Haley identified "L" as the person depicted in two surveillance photos. He said "L" had been driving the BMW on the night of the shooting.
Jerry Alston of the Irvington Police Department (IPD) testified that, after the Fox Trap bar shooting, he looked at the surveillance video of the incident. He could not identify anyone at that time. However, sometime later, while he was working at a casino in Atlantic City, Alston observed a person shown in the video possessing a handgun. According to Alston, the person was with an individual who Alston had seen outside the detective bureau a day or two after the shooting. Alston reported to Recktenwald he had seen the two suspects.
Recktenwald endeavored to identify the suspects in the surveillance video. He interviewed defendant on December 28, 2005, and on February 2, 2006. Defendant provided two written statements. Recktenwald showed defendant two still photos taken from the surveillance video recorded on the night of the shooting. At the time, Recktenwald did not know the name of the driver or the occupant of the BMW seen outside the bar when the shooting occurred.
The first photo showed the heavyset driver of the BMW. Recktenwald asked defendant if he knew that individual. Defendant said he did not. Recktenwald also asked defendant if the individual shown in the photo "had use of [the] BMW" shown at the crime scene. Defendant replied that the individual "did not have use of the car, [and] he did not know him." The second photo also depicted this occupant of the BMW. Recktenwald asked defendant if he knew that individual, and defendant replied that he did not. Recktenwald continued his investigation. He interviewed an individual who identified the two occupants of the BMW as Johnson and Leonard Hanna.
In August 2006, Hanna's body was found in a Chevrolet van in Newark. The cause of his death was determined to be multiple gunshot wounds. Stanley Rosa, a homicide detective with the ECPO, testified that the vehicle in which the body was found was registered to defendant's company, Larkin's Auto Brokerage and Sales. Rosa spoke to defendant outside the medical examiner's office. Defendant admitted the van belonged to his company. Rosa testified that the autopsy showed that, at the time of his death, Hanna weighed 333 pounds.
C.A. had known Hanna since 2000. They had lived together, and defendant was the father of C.A.'s daughter. C.A. stated that Hanna's nickname was "El." According to C.A., Hanna and defendant were good friends. Hanna resided for a time in a house in Plainfield that defendant owned. C.A. met defendant in 2004, when Hanna purchased a car for her from defendant's car lot.
We refer to C.A. by her initials, to protect her identity. --------
C.A. said Hanna drove a Chevrolet van almost every day. The van was registered in the name of defendant's company. She stated that Hanna also drove other vehicles, including a gray BMW. She was shown a photo of the BMW seen at the Fox Trap bar on the night of the shooting. She identified the BMW as the car that Hanna had driven "a couple of times." C.A. also recalled that Hanna came to her house late at night, sometime after the shooting. Hanna was with a friend, named "Jay." After C.A. spoke with Hanna, she went to a nearby store, where she met defendant, who she knew by his nickname, "Kalif." C.A. and defendant drove back to C.A.'s house. She said Hanna and Jay were still there.
Prior to trial, one of the detectives investigating the homicide showed C.A. two photos, one of which was marked as S-15. The photos were taken from the bar's surveillance video, a few seconds apart in the time frame. When shown S-15, C.A. testified that the person depicted in the photo was Hanna. She stated that when first shown that photo, she could not make out Hanna's face because "it was a blur" but as she looked further at the photo, she "seen that it was him because [of] his body build and stuff." She said, "it looks just like him."
Defendant did not testify at trial, and he did not call any witnesses on his behalf.
II.
On January 11, 2012, the trial judge placed his decision on the record. The judge noted that the State alleged defendant had provided false information to law enforcement on two dates, December 28, 2005, and February 2, 2006, in connection with Hanna's involvement in the Fox Trap bar shooting.
The judge observed that the State had to prove beyond a reasonable doubt that defendant knew Hanna had been or was likely to be charged with an offense; defendant gave false information to a law enforcement officer who had the power to detect, apprehend, arrest, and convict a person for violating the law; and defendant acted with a purpose of hindering Hanna's apprehension, prosecution, conviction, or punishment.
The judge found that the State had failed to prove the charge related to defendant's December 28, 2005 statement. The judge noted that when Recktenwald interviewed defendant on that date, defendant indicated that he knew his BMW had been towed from the Fox Trap bar on the previous evening, but he did not know how the car got there.
Defendant told Recktenwald he had allowed Johnson to borrow the car. The detective asked if defendant knew who would have had the car if Johnson did not, and he replied that it should not be anyone else. He was asked, "What would you say if I told you that [Ahmmad] Johnson did not drive the car to the Fox Trap [bar] the night it was towed?" Defendant stated that Johnson was the only person who had permission to drive his car.
The judge found that the State had not proven beyond a reasonable doubt that on December 28, 2005, defendant made a knowing, purposeful false statement that Johnson was the only person who had permission to drive the car on the night of the Fox Trap bar shooting. The judge observed that there was evidence that Hanna had been given permission to drive the BMW at times.
The judge stated, however, it was "entirely conceivable" that the BMW could have been initially given to Johnson, and Johnson thereafter had allowed Hanna to drive the car to the Fox Trap bar on the night of the shooting. The judge noted that, although C.A. had testified that Hanna met with defendant late at night, there was no proof that this meeting took place before defendant gave his statement to law enforcement on December 28, 2005.
The judge reached a different conclusion regarding defendant's statement of February 2, 2006. The judge noted that defendant had again acknowledged that on the night of the shooting, defendant had given his BMW to Johnson to use. Recktenwald showed defendant a photo, marked S-15 in evidence, and asked if defendant recognized the person in the photo, and if he gave that individual permission "to have or be in" his car. Defendant replied, "No" to both questions.
The judge observed that, at the time of this interview, defendant was aware of the shooting at the Fox Trap bar, and he knew that a homicide had occurred there. The judge noted that defendant knew Hanna. C.A. had testified that Hanna had resided in defendant's apartment in Plainfield, and Hanna had purchased a car from defendant. Defendant also had referred to Hanna as a friend. The judge pointed out that Hanna's body was later found in a car owned by defendant's company.
The judge concluded that at the time Recktenwald showed defendant the photo marked S-15, defendant knew that Hanna was person of interest who might be charged in connection with the December 27, 2005 homicide at the Fox Trap bar. The judge found that defendant falsely stated that he did not recognize the person in the photo, and had not given that individual permission to have or be in the car.
The judge determined that both statements were sufficient for conviction. The judge found that the State had proven beyond a reasonable doubt that defendant gave false information to law enforcement on February 2, 2006, with a purpose to protect Hanna, who was defendant's friend, and to hamper the investigation of Hanna's involvement in the shooting at the Fox Trap bar.
The judge then sentenced defendant. The judge did not impose a term of incarceration or probation. Rather, the judge imposed minimum financial penalties, specifically, a $75 assessment for the Safe Neighborhoods Services Fund, and a $50 assessment payable to the Victims of Crime Compensation Board. The judge entered a judgment of conviction dated January 11, 2012.
Thereafter, the State filed a motion pursuant to N.J.S.A. 2C:51-2a(1) for the forfeiture of defendant's employment as a corrections officer with the NJDOC. The court entered an order dated May 30, 2012, granting the motion.
Defendant appeals and raises the following arguments:
I. The record does not support the [c]ourt's finding that the [d]efendant acted to hinder the prosecution or apprehension of Mr. Hanna.
A. Standard of Review
B. Reasonable Doubt Standard
C. The record does not support the [c]ourt's conclusion that the [d]efendant attempted to hinder the prosecution or apprehension of [Leonard] Hanna when on February 2, 2005, he stated that he did not know the individual depicted in [the photograph] marked S-15 and that he did not give that individual permission to use his automobile.
[1] the [c]ourt's finding that it was reasonable to believe that the [d]efendant gave permission to Johnson but not to the individual depicted in S-15 to drive the BMW on December 27, 2005, precludes the [c]ourt from also making a finding that it would be unreasonable to believe that the Defendant ever permitted the individual depicted in S-15 from driving the BMW.
[2] The record does not support the [c]ourt's conclusion that the Defendant
could identify the individual depicted in photograph S-15. As such, the [d]efendant did not make a false statement when he asserted that he [a] [d]id not give permission to the individual depicted in S-15 to drive his BMW and that he [b] could identify the individual depicted in S-15.
[3] The assertion by [C.A.] that she met with the [d]efendant, Mr. Hanna, and [an] individual named "Jay" at a [store], at night, sometime after December 27, 2005, is not indicative [that] the [d]efendant [had] knowledge that Hanna used the BMW [on] the night of the shooting or at [any time].
II. The [c]ourt improperly permitted the introduction of evidence showing that a "meeting" between the [d]efendant, [C.A.], and Mr. Hanna occurred sometime after December 27, 2005.
III. The [c]ourt improperly permitted the introduction of evidence that Mr. Hanna's body was found in an automobile owned by [defendant's] company.
IV. The [c]ourt committed reversible error when it permitted [C.A.] to testify as to who she believed was the individual depicted in the photograph.
V. The [c]ourt improperly issued an order requiring the [d]efendant to forefeit his job.
III.
Defendant argues that the State failed to present sufficient evidence to establish beyond a reasonable doubt that he gave false information to law enforcement on February 2, 2006, with the purpose of hindering the apprehension or prosecution of Hanna, in violation of N.J.S.A. 2C:29-3a(7).
We note that the findings of a judge, sitting without a jury, are binding on appeal if supported by sufficient, credible evidence in the record. State v. Locurto, 157 N.J. 463, 474 (1999). Moreover, we must give deference to the trial court's findings if they have been "'substantially influenced by [the court's] opportunity to hear and see the witnesses and to have a "feel" of the case, which a reviewing court cannot enjoy.'" Id. at 471 (quoting State v. Johnson, 42 N.J. 146, 161 (1964)). However, "[a] trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference." Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).
As we stated previously, on February 2, 2006, Recktenwald questioned defendant regarding the December 27, 2005 homicide at the Fox Trap bar. Defendant admitted that he had given Johnson permission to use his car that night. Recktenwald showed defendant two photos. Defendant told Recketenwald he could not identify the person shown in the photos. He also told Recktenwald that the person in the photos did not have his permission "to have or be in" his car.
We agree with defendant that there was insufficient evidence to show that he lied to Recktenwald when he stated that the person depicted in the photos did not have his permission "to have or be in" his car. We note that the question posed did not specifically reference the night of December 27, 2005, although that was the context in which the questions were asked. In any event, there was no evidence that defendant had given Hanna permission "to have or be in" his car on the night of the shooting.
Although testimony was presented at trial which indicated that defendant had permitted Hanna to use his BMW from time to time, that evidence was insufficient to support an inference that defendant knew that Hanna had permission "to have or be in" his car on the night of the shooting. As the judge pointed out regarding defendant's December 28, 2005 statement, Johnson may have allowed Hanna to be in the car on the night of the shooting, unbeknownst to defendant.
We reach a different conclusion regarding defendant's statement that he could not identify Hanna as the person shown in the two photos that Recktenwald showed to him during the February 2, 2006 interview. The judge found that defendant knew that Hanna was depicted in one of the photos, the one marked S-15. Defendant argues that the record does not support the judge's finding that defendant could have identified Hanna in that photo. Defendant notes that when C.A. was first shown the photo marked as S-15, she could not identify Hanna. However, as the trial judge found, C.A. positively identified Hanna in S-15 at trial.
We are convinced that it was reasonable for the judge to infer that, if C.A. could identify Hanna in S-15, defendant also could do so, in view of his long-standing personal relationship with Hanna. Thus, there is sufficient credible evidence in the record to support the judge's finding that defendant falsely told Recktenwald he could not identify the person shown in S-15.
Defendant further argues that there was insufficient evidence to support the judge's finding that he knew Hanna was linked to the Fox Trap bar homicide when he was asked to identify his photo on February 2, 2006. We disagree.
The evidence indicated that defendant knew his BMW had been towed from the Fox Trap bar parking lot after the shooting. He was questioned the following day about the person or persons who were authorized to drive or be in the car the previous night. When defendant was interviewed again on February 2, 2006, Recktenwald informed him that he was being questioned about the Fox Trap bar homicide. Defendant told Recktenwald that Johnson had his car on the night of the shooting, and he was asked whether the person depicted in two photos had permission to have to be in the car.
As noted, the judge found that defendant could have identified Hanna as the person shown in one of those photos, the photo marked S-15. Because defendant was shown Hanna's photo in the context of the detective's inquiry regarding the Fox Trap bar shooting, the judge reasonably inferred that defendant knew Hanna was a person of interest in the investigation, and could be charged and prosecuted in connection with that incident.
In addition, defendant argues that the judge erroneously admitted evidence about the meeting he had with Hanna sometime after the shooting at the bar. Defendant also argues that the judge erred by admitting evidence that, in August 2006, Hanna's body was found in a car owned by defendant's company. Defendant further argues that the judge erred by permitting C.A. to testify that the person depicted in S-15 was Hanna. We are convinced that these arguments are without sufficient merit to warrant discussion. R. 2:11-3(e)(2).
However, we note the following. Even if the judge erred by allowing C.A. to testify about defendant's meeting with Hanna, as we have explained, other evidence was presented which was sufficient to support the judge's findings that defendant was aware of Hanna's possible involvement in the Fox Trap bar shooting when he was questioned on February 2, 2006.
Moreover, the evidence that Hanna's body was found in the vehicle owned by defendant's company was relevant to defendant's close personal relationship with Hanna. Furthermore, the judge reasonably found that C.A.'s identification of Hanna in S-15 was credible, and not the result of any suggestive procedure by the investigators.
We conclude that there is sufficient credible evidence in the record to support the judge's finding that defendant was guilty of providing false information to a law enforcement officer on February 2, 2006, for the purpose of hindering Hanna's apprehension or prosecution for his involvement in the homicide at the Fox Trap bar.
IV.
Defendant also argues that the trial judge erred as a matter of law by ordering the forfeiture of his position as a corrections officer with the NJDOC. He contends that a conviction of hindering apprehension or prosecution of another does not constitute a crime of dishonesty and therefore, there was no basis for ordering the forfeiture of his position.
N.J.S.A. 2C:51-2a provides that
A person holding any public office, position, or employment, elective or
appointive, under the government of this State or any agency or political subdivision thereof, who is convicted of an offense shall forfeit such office, position, or employment if (1) [h]e is convicted under the laws of this State of an offense involving dishonesty or a crime of the third degree or above."
A conviction of a disorderly persons offense that involves dishonesty triggers the mandatory forfeiture of office under N.J.S.A. 2C:51-2a. State v. Lee, 258 N.J. Super. 313, 317 (App. Div. 1992). "The statute makes no distinction as to the quantum of the dishonest conduct; dishonest conduct compels forfeiture of office." Ibid. (citation omitted).
We are convinced that the record supports the trial court's determination that defendant was convicted of an offense that involves dishonest conduct. See State v. Kennedy, 419 N.J. Super. 475, 480 (App. Div.) (holding that tampering with physical evidence to deny investigators access thereto is a crime of dishonesty warranting forfeiture of office), certif. denied, 208 N.J. 369 (2011); State v. Musto, 187 N.J. Super. 264, 282 (Law Div. 1982) (perjury and false swearing are offenses involving dishonesty because they reveal an intent to deceive).
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION