SUPERIOR COURT OF NEW JERSEY
PETER G. REPOLI,
Submitted May 1, 2012 – Decided July 10, 2012
Before Judges Messano and Espinosa.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 09-07-2065.
Joseph E. Krakora, Public Defender, attorney for appellant (Robert Carter Pierce, Designated Counsel, on the brief).
Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Lucille M. Rosano, Special Deputy Attorney General/ Assistant Prosecutor, of counsel and on the brief).
Following a jury trial, defendant Peter G. Repoli was convicted of the disorderly persons offense of false imprisonment, N.J.S.A. 2C:13-3, a lesser-included offense of criminal restraint, N.J.S.A. 2C:13-2. The judge also found defendant guilty of possession of drug paraphernalia,N.J.S.A. 2C:36-2, a disorderly persons offense. The judge subsequently sentenced defendant to 364 days in the county jail on the false imprisonment conviction and imposed a concurrent six-month sentence to the county jail on the drug paraphernalia conviction. Appropriate fines and penalties were also imposed.
Before us, defendant raises the following arguments:
POINT I: THE TRIAL COURT ERRED BY PERMITTING THE STATE TO PRESENT TESTIMONY THAT A SEARCH WARRANT WAS ISSUED TO SEARCH THE DEFENDANT'S HOME FOR EVIDENCE OF CRIMINAL ACTIVITY. (Not Raised Below)
POINT II: THE TRIAL COURT ERRED IN FAILING TO CHARGE THE JURY, SUA SPONTE, WITH A LIMITING INSTRUCTION CONCERNING THE SEARCH WARRANT TESTIMONY. (Not Raised Below)
POINT III: THE TRIAL COURT ERRED BY NOT STRIKING THE TESTIMONY OF DETECTIVE FUNK THAT THE POLICE MAY HAVE OBTAINED MR. REPOLI'S PHOTOGRAPH BY INSERTING HIS STATE IDENTIFICATION NUMBER INTO THE POLICE COMPUTER AND ALSO BY NOT PROVIDING AN ADEQUATE JURY INSTRUCTION. (Partially Raised Below)
POINT IV: DETECTIVE FUNK WAS NOT QUALIFIED AS AN EXPERT. THEREFORE, HIS OPINION THAT THE GLASS PIPES, BRILLO SUBSTANCE AND NAIL WAS DRUG PARAPHERNALIA WAS INADMISSIBLE IN VIOLATION OF N.J.R.E. 702. (Not Raised Below)
POINT V: MR. REPOLI WAS DEPRIVED OF EFFECTIVE ASSISTANCE OF COUNSEL DUE TO COUNSEL'S (A) FAILURE TO OBJECT TO THE SEARCH WARRANT TESTIMONY; (B) FAILURE TO SEEK A CURATIVE INSTRUCTION CONCERNING THE SEARCH WARRANT; (C) FAILURE TO MOVE TO STRIKE THE "STATE IDENTIFICATION NUMBER" TESTIMONY; AND (D) FAILURE TO OBJECT TO DETECTIVE FUNK'S EXPERT TESTIMONY. (Not Raised Below)
POINT VI: THE TRIAL COURT'S IMPOSITION OF A FOURTH DEGREE CONVICTION FOR FALSE IMPRISONMNET, N.J.S.A. 2C:13-3, WAS AN ILLEGAL SENTENCE AS FALSE IMPRISONMENT IS A DISORDERLY PERSONS OFFENSE. (Not Raised Below)
The State concedes that the sentence imposed for false imprisonment was illegal and a remand is necessary. We have considered the remaining arguments in light of the record and applicable legal standards. We affirm.
At approximately 6:00 a.m. on the morning of March 20, 2009, Ervin Gamez was walking down Henry Street in Orange when a man approached and offered to pay Gamez to repair a door frame. At trial, Gamez identified defendant as that person. Gamez further testified that defendant grabbed his upper right arm and pushed him into a waiting taxi. While in the taxi, defendant gave Gamez business cards with his name and address and told Gamez that he was an attorney.
The two men rode in the taxi to defendant's apartment. Gamez observed the broken door frame and asked defendant for tools to make the repairs. Gamez refused to enter the apartment, but defendant grabbed his upper right arm and pushed him inside. Defendant told Gamez to sit down and began smoking a white substance he had pulled from a small bag.
Defendant then asked Gamez to remove his clothes. Gamez became suspicious and asked if he could use the bathroom, hoping, unsuccessfully, to find an escape route out of the apartment. Defendant realized Gamez was attempting to flee and ordered him sit down near a table. Defendant pulled a small, black handgun from a garbage bag and placed it on the table within reach.
Defendant lay down on a bed and again ordered Gamez to remove his clothes and join him. Gamez took off his jacket and left it on the chair in an attempt to gain defendant's trust. Gamez then quickly ran to the door, down the stairs and out of the apartment building.
Gamez used the phone in a laundromat near defendant's apartment to call his brother and uncle. When they arrived, the three men went to the West Orange Police Station. Gamez described the events and took the police officers to defendant's apartment building. When they arrived, Gamez's jacket was hanging on the front door of the building. Gamez returned to the West Orange Police Station where he was presented with a photographic array of six pictures. Gamez identified defendant from the array. Gamez also gave defendant's business cards to the officers.
Defendant was arrested later that day. The police obtained a search warrant and seized from defendant's apartment various items alleged to be narcotic paraphernalia. No handgun was recovered.
Defendant did not testify and called no witnesses in his defense.
In Points I and II, defendant argues that references to the search warrant by the prosecutor in his opening, and during the testimony of Detective Brian Funk, deprived him of a fair trial, and that the judge should have sua sponte issued a curative instruction to the jury. Because defendant lodged no objection at trial and never requested such an instruction, we consider the contentions under the plain error standard. SeeR. 2:10-2 "[a]ny error or omission shall be disregarded . . . unless it is of such a nature as to have been clearly capable of producing an unjust result").
During his opening statement, the prosecutor told the jury that "the officers did their investigation, eventually obtaining a search warrant . . . ." He continued by stating the search warrant was executed and certain evidence was seized. During Detective Funk's testimony, the prosecutor asked a series of questions referencing the search warrant. Additionally, Funk testified that he was "the affiant" on the warrant and fellow officers secured defendant's apartment "until the warrant was signed by the judge."
Defendant argues that based upon our holdings in State v. Milton, 255 N.J. Super. 514 (App. Div. 1992), and State v. Alvarez, 318 N.J.Super. 137 (App. Div. 1999), these references to the search warrant were highly prejudicial and require reversal. We disagree.
In State v. McDonough, 337 N.J. Super. 27, 32 (App. Div.), certif. denied, 169 N.J. 605 (2001), the defendant made a similar argument. However, we rejected the contention, noting that "the evidence of the warrants in Milton and Alvarez not only indicated that a judge had found sufficient basis to justify their issuance, but also implied that the State had presented evidence to the judge that was not introduced at trial which indicated that the defendant was likely to be in possession of contraband." Id. at 34. Instead, we concluded that the case was controlled by Statev. Marshall, 148 N.J. 89, cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed.2d 88 (1997), where the Court held "that the jury does not have to be 'shielded from knowledge that . . . warrants have been issued in a criminal matter because the prior judicial determination of probable cause may influence the jury to assume guilt.'" Id. at 35 (quoting Marshall, supra, 148 N.J. at 240).
In this case, although the search warrant was referenced repeatedly, there was nothing suggesting evidence was supplied to the judge issuing the warrant that was not presented to the jury. Indeed, following Gamez's testimony in which he detailed the information he supplied to the police, Funk testified as to how the investigation unfolded thereafter. Therefore, it was logical for the jury to have concluded that a search warrant for defendant's apartment was issued based upon, and only upon, the information Gamez directly provided to the police.
Defendant also argues that the judge committed plain error by not providing the jury with a limiting charge regarding these references to the search warrant. In light of the above, we conclude the argument lacks sufficient merit to warrant discussion in this opinion. R. 2:11-3(e)(2).
In Points III and IV, defendant contends that other aspects of Funk's testimony require reversal. We consider them seriatim.
During direct examination, the prosecutor asked Funk:
Q. And during the course of the investigation, did you have the opportunity to prepare photographs for viewing by Ervin Gamez?
Q. Could you just go through briefly your process in doing so?
A. Um, the West Orange Police Department utilizes a computer-generated program, where we input a suspect's state identification or his last name.
Defendant objected and at sidebar claimed the testimony regarding a "state identification number" meant "somebody spent time in prison." The judge suggested that the prosecutor pose leading questions to Funk, and he would provide the jury with a curative instruction. Defense counsel stated, "That's appropriate."
The prosecutor then asked:
Q. As a result of your search, . . . you came across a photo of [defendant], correct?
Q. And what did you do with that photo?
A. We found five similar fillers. And the victim was shown six photographs in which he positively identified [defendant] as the suspect.
The judge immediately instructed the jury that "law enforcement comes into contact with photos of people for all kinds of reasons . . . totally unrelated to criminal activity. So, you're not to infer from the fact that the police had a photograph of defendant as proof that he's involved in criminal activity or that he committed the crimes charged." There was no objection. The judge gave a similar charge in his final instructions to the jury.
After identifying the glass pipe and other things seized from defendant's apartment, Funk confirmed that "based on [his] training and experience, those items [we]re items that could be used to smoke narcotics[.]" Funk further identified a Brillo-like substance as being "used as a filter when ingesting crack cocaine." No objection was made at trial.
Defendant now argues that Funk's testimony regarding "a suspect's state identification" was improper because it suggested to the jury that he had a prior criminal record and the judge's curative instruction was inadequate. Defendant also contends that Funk was neither qualified as an expert nor "asked a proper hypothetical question" regarding the items seized from his apartment.
The arguments lack sufficient merit to warrant extensive discussion. R. 2:11-3(e)(2). We add the following brief comments.
In our view, the judge properly instructed the jury regarding defendant's photograph and its appearance in the photographic array shown to Gamez. Absent any proof to the contrary, we presume the jury fully complied with his instructions. State v. Nelson, 173 N.J. 417, 447 (2002).
We reject the State's contention that Funk's testimony regarding the pipes and other evidence seized was proper lay opinion. See N.J.R.E.701. As the Court recently said, if based upon his perception, a lay witness is permitted to "give an opinion on matters of common knowledge and observation." State v. Bealor, 187 N.J. 574, 586 (2006) (quoting State v. Johnson, 120 N.J. 263, 294 (1990)). Whether Brillo can be used as a filter to smoke crack cocaine is a matter beyond the ken of a juror's common knowledge.
However, any error was harmless beyond a reasonable doubt. The jury was not asked to consider defendant's guilt regarding the charge of possession of narcotics paraphernalia. Moreover, defendant has not argued that the evidence somehow prejudicially tainted the jury's proper consideration of the actual counts in the indictment for which it rendered verdicts.
Defendant argues trial counsel provided ineffective assistance by failing to object to: the search warrant testimony, or seek a curative instruction; Funk's testimony regarding the "state identification number; and Funk's opinions regarding the narcotics paraphernalia. Again, we disagree.
To establish a claim of ineffective assistance of counsel, a defendant must satisfy the two-prong test formulated in Strickland v. Washington,466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed.2d 674, 693 (1984), and adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987). First, he "must show that . . . counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed . . . by the Sixth Amendment." Id. at 52 (quoting Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693). Second, a defendant must prove that he suffered prejudice due to counsel's deficient performance. Fritz, supra, 105 N.J. at 52 (quoting Strickland, supra, 466 U.S. at 687, 104 S. Ct.at 2064, 80 L. Ed. 2d at 693). A defendant must show by "a reasonable probability" that the deficient performance affected the outcome. Fritz,supra, 105 N.J. at 58.
Routinely, our consideration of claims of ineffective assistance of counsel is postponed until a petition for post-conviction relief is filed "because the facts often lie outside the trial record and because the attorney's testimony may be required." State v. Preciose, 129 N.J. 451, 462 (1992). This is not such a case.
As noted, the bases for defendant's ineffective assistance of counsel claim all relate to issues raised in his other points on appeal. None of them have merit. Therefore, even if trial counsel was deficient, and he was not, there was no "reasonable probability" that the deficient performance affected the outcome. Fritz, supra, 105 N.J. at 58.
Lastly, the State concedes that the sentence of 364 days on the conviction for false imprisonment is illegal because the maximum term of imprisonment for a disorderly-persons offense is six months. See N.J.S.A. 2C:43-8. The State suggests that we remand the matter so the judge may enter an amended judgment of conviction imposing a six-month term. However, defendant correctly points out that the amended judgment of conviction should also reflect that defendant was convicted of a disorderly persons offense, not a crime. See N.J.S.A. 2C:1-4(b) ("Disorderly persons offenses . . . are not crimes within the meaning of the Constitution of this State. . . . Conviction of such offenses shall not give rise to any disability or legal disadvantage based on conviction of a crime.").
The matter is remanded to the trial judge for entry of an amended judgment of conviction reflecting defendant's conviction of the disorderly persons offense of false imprisonment. N.J.S.A. 2C:13-3. The judge shall also re-sentence defendant to a sentence permitted under our Criminal Code for such an offense.
Defendant's conviction is affirmed. The matter is remanded for re-sentencing and entry of an amended judgment of conviction. We do not retain jurisdiction.