Opinion
DOCKET NO. A-0492-14T4
03-11-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. STEVEN J. KADIR, Defendant-Appellant.
Joseph J. Benedict argued the cause for appellant (Benedict and Altman, attorneys; Mr. Benedict and Philip Nettl, on the brief). Timothy F. Trainor, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for respondent (Angelo J. Onofri, Acting Mercer County Prosecutor, attorney; Laura Sunyak, 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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Lihotz, Fasciale and Nugent. On appeal from Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 12-08-0819. Joseph J. Benedict argued the cause for appellant (Benedict and Altman, attorneys; Mr. Benedict and Philip Nettl, on the brief). Timothy F. Trainor, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for respondent (Angelo J. Onofri, Acting Mercer County Prosecutor, attorney; Laura Sunyak, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant appeals from his convictions for second-degree official misconduct, N.J.S.A. 2C:30-2(a); third-degree theft by deception, N.J.S.A. 2C:20-4(a); and third-degree tampering with public records, N.J.S.A. 2C:28-7(a)(2). We affirm.
After the court denied defendant's motion for discovery, the parties tried this case on several days before a judge and jury. The State produced testimony from a Robbinsville Township (the Township) Fire Department captain, the Township's former director of fire (the Director), the payroll benefits coordinator for the Township, the deputy chief of the Township's Fire Department, and two lieutenants in the Township's Police Department. Defendant testified and produced testimony from an expert in the field of accounting, two captains from the Township's Fire Department, a Township firefighter, and a family friend and co-volunteer firefighter. We discern the following facts from the evidence adduced at trial.
Defendant was a full-time firefighter for more than a decade. In that capacity, defendant was required to submit biweekly timesheets accurately documenting his hours worked. Ordinarily, the Director would review firefighter timesheets for accuracy before they were sent to the Township's finance department. However, the Director employed by the Township between 2009 and early 2012 did not adequately audit defendant's timesheets. As a result, defendant's time sheets, which failed to identify significant periods of vacation time were submitted for payment.
The police investigated defendant's timesheets and learned that between 2009 and 2012, defendant failed to document 20 hours of vacation time in 2009, 120 hours in 2010, 168 hours in 2011, and 48 hours in the first three months of 2012. As a result, during this period, defendant did not record 356 hours of paid leave, resulting in a benefit to defendant of $10,392.
The jury found defendant guilty on all counts. After the verdict and in preparation for sentencing, defendant obtained a report from a psychologist indicating that defendant had "gone through adult life with a disability involving" attention-deficit/hyperactivity disorder (ADHD) and certain learning disabilities. According to the psychologist, defendant's ADHD affected his ability to properly complete administrative tasks, such as timesheets. Defendant moved for a new trial arguing the verdict should be vacated based on this information. The court conducted oral argument, denied that motion, and imposed an aggregate five-year prison sentence with one year and five days of parole ineligibility.
On appeal, defendant raises the following arguments:
POINT I
The trial court infringed on [d]efendant's right to present a complete defense by
foreclosing any consideration of [the Director's] negligence. (Raised Below).
A. [The pre-trial motion judge] erred in denying [d]efendant's discovery motion. (Raised Below).
B. [Defendant's accounting expert's] testimony should have been permitted. (Raised Below)[.]
C. The curative instruction striking [the accountant's] response was unnecessary, overbroad and prejudicial. (Raised Below)[.]
POINT II
The trial court failed to adequately cure [a lieutenant's] improper opinion [testimony] of [d]efendant's guilt. (Partially Raised Below).
POINT III
Cumulative error cost [d]efendant a fair trial. (Not Raised Below).
POINT IV
The Motion for a New Trial should have been granted, because [the psychologist's] opinion cast substantial doubt on the verdict. (Raised Below).
We conclude that defendant's argument in Point III is "without sufficient merit to warrant discussion in a written opinion." R. 2:11-3(e)(2). We focus instead on Points I, II, and IV.
I.
We begin by addressing defendant's contention the pre-trial motion judge erred by denying his discovery motion. Defendant maintains: (1) the discovery denial deprived him of the ability to present a complete defense to the charges; (2) the trial judge erroneously excluded opinion testimony from defendant's accounting expert based on the discovery ruling; and (3) the court exacerbated that evidentiary ruling by giving a flawed curative instruction.
A.
Defendant filed a motion seeking to compel the State to produce various pieces of information, primarily: (1) notes, a calendar, calendar book, and email records from the Director's administrative assistant; and (2) the Director's timesheets from 2009 to 2012. Defendant maintains he did not purposefully submit inaccurate timesheets. He argues the documentation would have bolstered his testimony that his actions amounted to mistakes, not intentional conduct.
We review a court's denial of discovery requests under an abuse of discretion standard. State v. Enright, 416 N.J. Super. 391, 404 (App. Div. 2010), certif. denied, 205 N.J. 183 (2011). The judge's determination was, in essence, premised upon the relevance of the discovery sought. Although defendants are entitled to broad discovery, Rule 3:13-3, the information sought must be relevant. State v. Ballard, 331 N.J. Super. 529, 538 (App. Div. 2000) (explaining "[d]iscovery is appropriate if it will lead to relevant and material information"). "'Relevant evidence' is defined as 'evidence having a tendency in reason to prove or disprove any fact of consequence to the determination of the action.'" State v. Gilchrist, 381 N.J. Super. 138, 146 (App. Div. 2005) (quoting N.J.R.E. 401). "In determining whether evidence is relevant, the inquiry should focus upon 'the logical connection between the . . . evidence and a fact in issue.'" State v. Darby, 174 N.J. 509, 519 (2002) (quoting State v. Hutchins, 241 N.J. Super. 353, 358 (App. Div. 1990)). "If the evidence offered makes the inference to be drawn more logical, then the evidence should be admitted unless otherwise excludable by a rule of law." Ibid. (quoting State v. G.V., 162 N.J. 252, 272-73 (2000) (Coleman, J., concurring in part and dissenting in part)).
We accord "substantial deference to a trial court's evidentiary rulings." State v. Morton, 155 N.J. 383, 453 (1998), cert. denied, 532 U.S. 931, 121 S. Ct. 1380, 149 L. Ed. 2d 306 (2001). "[T]he decision of the trial court must stand unless it can be shown that the trial court palpably abused its discretion, that is, that its finding was so wide of the mark that a manifest denial of justice resulted." State v. Goodman, 415 N.J. Super. 210, 224-25 (App. Div. 2010) (quoting State v. Carter, 91 N.J. 86, 106 (1982)), certif. denied, 205 N.J. 78 (2011).
The pre-trial motion judge heard oral argument, denied defendant's motion to compel discovery, and issued a written decision stating:
The State argues that the discovery requested goes beyond the scope of what the State is obligated to provide under Rule 3:13-3. Defendant argues that copies of [the Director's] time[]sheets and [the assistant's] calendar are necessary to demonstrate defendant lacked the requisite state of mind for purposeful or knowing conduct. Defendant maintains he simply made mistakes on his time[]sheets and relied upon [the Director] to correct any errors. He asserts [the assistant's] calendar and notes will demonstrate [the Director] was not adequately performing his supervisory duties, and that [the Director's] time[]sheets will show he submitted falsified time[]sheets. He further argues that [the Director's] time[]sheets will provide impeachment material.
. . . .
The [c]ourt rejects defendant's asserted need to obtain information regarding [the Director's] work performance. The requested information does not appear to have any value for impeachment purposes and does not tend to prove or disprove any facts of consequence to defendant's guilt or innocence. The [c]ourt agrees with the State's argument that [the Director's] negligence in allowing defendant to submit false time[]sheets does not establish a defense to the allegations. Whether defendant will be found guilty will be determined by his conduct. Defendant is
free to argue that he did not act knowingly or purposefully, but was merely negligent when he submitted inaccurate time[]sheets.
We conclude the judge did not abuse his discretion in denying defendant's discovery motion. The key issue was whether defendant purposefully or knowingly falsified his timesheets to fraudulently obtain a benefit, or whether he lacked the requisite mindset and was simply negligent. Defendant contends that the Director's negligence in failing to adequately review the timesheets bolsters his defense that defendant was merely acting negligently and expecting any errors to be corrected by his supervisor. Evidence as to whether the Director was negligent does not answer the crucial question of defendant's mental state when he actually submitted his timesheets. Regardless of whether the Director was negligent, and even if we assume he was, such evidence does not aid in determining defendant's mens rea when he submitted his timesheets. Indeed, the Director himself admitted he did not adequately check defendant's timesheets. Nevertheless, this admission did not establish defendant's mens rea in submitting the timesheets, and thus further information as to the Director's negligence would similarly have failed to establish the issue at hand, namely defendant's mental state.
The judge made clear that defendant was free to argue to the jury that he lacked the mens rea to commit these crimes, and that he was simply negligent in submitting the timesheets, an issue analytically distinct from what was actually done with said timesheets once they were submitted. Defendant had a full opportunity to make this argument at trial, and was unsuccessful. We conclude the judge did not abuse his discretion in denying the motion to produce discovery when the requested information was, at best, ancillary to the issue in the case.
B.
We disagree with defendant's argument that the trial judge erred by striking certain expert opinion testimony proffered by defendant's accounting expert. Applying our deferential standard of review on evidentiary rulings, we conclude there was no abuse of discretion. See State v. Buda, 195 N.J. 278, 294 (2008).
In response to defense counsel's question on direct examination about whether the Township could have used its two software programs to verify the timesheets submitted by the firefighters, the accountant testified defendant's mistakes would have been caught if the programs were used on a contemporaneous basis to check submitted timesheets. He added "if those systems were used . . . [they] would have corrected any [timesheet] mistakes" made by defendant.
The State objected maintaining it was irrelevant whether a computer system would have established the accuracy of submitted timesheets. The judge sustained the objection striking the testimony from the record and rejecting defendant's contention that the accountant's opinion would have corroborated defendant's defense that he lacked the mens rea to commit the crimes. The judge independently concluded that such opinion testimony was irrelevant, agreeing essentially with the pre-trial motion judge who found "[d]efendant is [still] free to argue that he did not act knowingly or purposefully, but was merely negligent when he submitted inaccurate time sheets." At any rate, it would be the Director's responsibility to check the accuracy of defendant's timesheets, and it is clear that the Director failed to do so, as the undisputed evidence demonstrated. Thus, the ability of the Director to use the software programs to verify the timesheets provided to him by the firefighters does not answer the question as to whether defendant purposefully or knowingly submitted false timesheets, and therefore the expert's testimony was properly excluded.
Defendant did not testify he submitted his timesheets relying specifically on the Township's software programs to catch any errors. --------
C.
We conclude the judge did not err by giving a curative instruction to the jury striking that part of the accountant's testimony. The judge instructed the jury:
As you heard, the witness made a response to the last question, in effect, that a supervisor could have checked any firefighter's timesheet to determine - and compare it against [the two software programs] for any discrepancies and presumably then could have corrected any discrepancies.Defendant did not object to this curative instruction, and has not argued on appeal that the final jury charge was given in error.
I am going to strike that witness's last statement from the record. You[ a]re not permitted to consider that statement when you go to deliberate.
I do tell you as part of my final charge at the end of the case after all the evidence is presented . . . I will give you specific instructions as to how any supervisor's lack of supervision, in particular reviewing timesheets, impacts any defense [] defendant may have had to these charges.
Because defendant failed to object to the language of the curative instruction, "we review the [instruction] for plain error and reverse only if such an error was 'clearly capable of producing an unjust result.'" State v. Miller, 205 N.J. 109, 126 (2011) (quoting R. 2:10-2). "Pursuant to Rule 1:7-2, defendant's failure to object [to a curative instruction] constitutes a waiver of his right to challenge that instruction on appeal." State v. Docaj, 407 N.J. Super. 352, 362 (App. Div.), certif. denied, 200 N.J. 370 (2009). "If the defendant does not object to the [curative instruction] at the time it is given, there is a presumption that the [curative instruction] was not error and was unlikely to prejudice the defendant's case." State v. Singleton, 211 N.J. 157, 182 (2012). Applying these standards, we conclude there was no error, let alone plain error.
Defendant speculates that the curative instruction had the "practical effect" of discounting other testimony. In his curative instruction, the judge did not reference testimony from other witnesses. He simply directed the jury to disregard that part of the accountant's testimony, and then later repeated that instruction in the final charge.
II.
A lieutenant testified at trial about her investigation of defendant's timesheets. She testified that after the police discovered defendant failed to document 168 hours of vacation time, "we're past the mistake stage." After defense counsel objected, the trial judge sustained the objection, and immediately issued a curative instruction: "All right, ladies and gentlemen, you heard this lieutenant give her own personal opinion based upon her investigation. That's an improper remark. I'm going to ask you to disregard it. I'm going to strike it from the record."
Defense counsel argues for the first time that the instruction lacked specificity and firmness. "Pursuant to Rule 1:7-2, defendant's failure to object constitutes a waiver of his right to challenge that instruction on appeal" unless the alleged error in the charge meets the plain error standard. Docaj, supra, 407 N.J. Super. at 362.
The effect of improperly admitted evidence can be eradicated by an immediate and strong curative instruction to the jury to disregard the evidence; the curative instruction must be "firm, clear, and accomplished without delay." State v. Vallejo, 198 N.J. 122, 134 (2009). Here, the judge instructed the jury to disregard the statement entirely. The firmness and specificity of the instruction here is evident. Also, the final charge to the jury instructed them to disregard stricken testimony. As a result, we conclude there was no plain error. See R. 2:10-2.
III.
Defendant argues he learned after the verdict he had a learning disability. He maintains that his ADHD may have raised a reasonable doubt as to whether, as he testified, his inaccurate timesheets resulted from his own mistakes. Defendant contends this information constitutes new evidence warranting a new trial.
To prevail on this argument, defendant must establish all three of the following criteria. The evidence must be "(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)). "[P]rongs one and three are inextricably intertwined." Ibid. As to these prongs, "[t]he power of the newly discovered evidence to alter the verdict is the central issue." Id. at 549-50 (quoting State v. Ways, 180 N.J. 171, 191-92 (2004)). Defendant failed to establish this criteria.
As to the first and third prongs, we conclude the information in the psychologist's report is not the type that would "probably change the jury's verdict." Defendant, who was in his mid-thirties and without question an exceptional firefighter, testified he was generally disorganized and his timesheet errors amounted to mistakes. This is not a situation where defendant made an occasional error submitting his timesheets. The evidence demonstrated he made repeated omissions, by not placing a "V" on a computerized timesheet, over a four-year period, primarily related to vacation time. The information in the report, therefore, is not the type of evidence that "would shake the very foundation of the State's case and almost certainly alter the earlier jury verdict." Id. at 549 (quoting Ways, supra, 180 N.J. at 189).
Prong two mandates that "the new evidence must have been discovered after completion of trial and must not have been discoverable earlier through the exercise of reasonable diligence." Id. at 550 (quoting Ways, supra, 180 N.J. at 192). It is well settled that the defense must "act with reasonable dispatch in searching for evidence before the start of the trial." Ibid. (quoting Ways, supra, 180 N.J. at 192).
Defendant has not shown that the information contained in the psychologist's report was not discoverable prior to trial "through the exercise of reasonable diligence." The psychologist opined defendant had "gone through adult life with a disability involving [ADHD]." And as early as third or fourth grade, defendant's mother observed he had learning and organizational problems. Thus, defendant had ample opportunity to discover and raise this defense at trial.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION