Opinion
DOCKET NO. A-0887-14T4
01-31-2017
STATE OF NEW JERSEY, Plaintiff-Respondent, v. MARYROSE MALANDRUCCA a/k/a MARY ALDELLIZZI and MARRYROSE K. ALDELLIZZI, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (John A. Albright, Designated Counsel, on the brief). Christopher J. Gramiccioni, Monmouth County Prosecutor, attorney for respondent (Paul H. Heinzel, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R.1:36-3. Before Judges Koblitz and Rothstadt. On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Indictment Nos. 10-05-0820 and 13-05-0734. Joseph E. Krakora, Public Defender, attorney for appellant (John A. Albright, Designated Counsel, on the brief). Christopher J. Gramiccioni, Monmouth County Prosecutor, attorney for respondent (Paul H. Heinzel, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Both indictments are listed on defendant's notice of appeal, but she raises no issues relating to Indictment No. 13-05-0734.
Defendant Maryrose Malandrucca appeals from her June 20, 2014 judgement of conviction for second-degree eluding, N.J.S.A. 2C:29-2(b), and fourth-degree obstructing the administration of justice, N.J.S.A. 2C:29-1. She was sentenced to an aggregate term of eight years in prison with no period of parole ineligibility for these charges, as well as another second-degree charge of eluding. On appeal defendant argues that trial errors entitle her to a new trial. We disagree and affirm.
Although the court signed an order granting the State's motion to sentence defendant to a discretionary extended term pursuant to N.J.S.A. 2C:44-3(a), it then implicitly rejected that application by sentencing her to a mid-range sentence for a second-degree crime, N.J.S.A. 2C:43-6(a)(2).
The testimony reveals the following facts. In the afternoon of January 13, 2010, Neptune Township Police Officer Paul Monahan was working undercover. He had extensive training and experience in narcotics investigations. Monahan was in an unmarked car near a McDonald's restaurant where considerable drug activity took place. He saw defendant seated in the driver's seat of a car parked in an isolated spot. He knew her from a prior traffic stop. She looked around, then at her lap, then her head rolled backward. This happened twice. Monahan recognized this as behavior related to drug activity. He drove over, parked near her car and approached the car on foot, knocking on the car window. He saw defendant through the car window with a syringe and baggies of white powder in her lap. Monahan identified himself as a police officer and ordered defendant to open her car door. Instead, she drove up over a curb, then reversed back in Monahan's direction while he held on to the doorknob, telling her she was under arrest. She sped off dangerously into traffic on Route 35. Monahan deemed it unsafe to follow her. He gave police headquarters the license plate number of the car, which belonged to defendant's long-time boyfriend, and later picked out defendant's photograph at police headquarters.
During defendant's testimony, she acknowledged three prior drug convictions and then denied she was driving her boyfriend's car that day, although she admitted she borrowed the car often, and sometimes took it without expressly asking permission. She acknowledged being at "Jersey Shore Addiction Services" on January 12, the day before the incident. She testified that she was given a traffic ticket for driving while suspended that day and was afraid to drive again after that. Her boyfriend testified that he was angry defendant drove his car while her license was suspended and when the brakes on the car were in disrepair, so on January 13 he arranged for a man named Eric to fix the car. He did not know Eric's last name.
Defendant raises the following issues on appeal:
POINT I: THE LOWER COURT ERRED IN DENYING DEFENDANT'S MOTION TO DISMISS THE POSSESSION OF CDS COUNT FROM THE INDICTMENT WHEN THE PROSECUTOR ADMITTED HE HAD NO EVIDENCE TO SHOW WHAT THE SUBSTANCE ACTUALLY WAS BEFORE THE TRIAL BEGAN, AND THE FAILURE TO DISMISS THIS COUNT OVERWHELMINGLY INFUSED THE TRIAL WITH INADMISSIBLE, PREJUDICIAL OTHER-CRIMES-EVIDENCE.
A. THE FIRST COUNT OF THE INDICTMENT WAS RENDERED PALPABLY DEFECTIVE BY THE STATE'S ADMISSION BEFORE TRIAL THAT IT HAD NO EVIDENCE TO PROVE AN ESSENTIAL ELEMENT OF THE CRIME CHARGED.
B. THE LOWER COURT'S ERROR IN THE ADMISSION OF "RES GESTAE" EVIDENCE WAS IN CONTRAVENTION OF OUR SUPREME COURT'S RULING IN STATE v. ROSE, 206 N.J. 141 (2011).
POINT II: THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTIONS FOR A MISTRIAL AFTER THE ASSISTANT PROSECUTOR'S EGREGIOUS MISCONDUCT DURING HIS OPENING STATEMENT AND SUMMATION.
POINT III: THE ERRORS IN THE DENIAL OF DEFENDANT'S MOTION TO DISMISS THE POSSESSION OF CDS COUNT OF THE INDICTMENT, THE RESULTING ADMISSION OF EXTENSIVE OTHER BAD ACT EVIDENCE, AND THE DENIAL OF HER MOTIONS FOR MISTRIALS BASED ON THE ASSISTANT PROSECUTOR'S IMPROPER REMARKS DURING HIS OPENING AND CLOSING COLLECTIVELY DEPRIVED HER OF A FAIR TRIAL.
Defendant was also indicted for possession of heroin. The State conceded prior to trial that it could not prove the drug charge as it had no laboratory test results or expert evidence. The parties agreed that the court would not read the indictment to the jury nor mention the existence of this charge. In Point I, defendant nevertheless argues that the failure of the court to formally dismiss the heroin charge until the end of the State's case was fatally defective. The court was scrupulous in abiding by defendant's desire not to inform the jury that she had been charged with possession of heroin. The timing of the actual dismissal of the charge was not of any practical or legal significance.
She was also indicted for fourth-degree resisting arrest, N.J.S.A. 2C:29-2(a)(2), which was dismissed by the court before the case was sent to the jury. --------
Defendant argues further that Officer Monahan's testimony of her activities in the car should not have been admitted into evidence under the standards set down by State v. Rose, 206 N.J. 141 (2011). We review the admission of evidence during trial under an abuse of discretion standard. State v. Gorthy, 226 N.J. 516, 539 (2016). In Rose, our Supreme Court looked to the Third Circuit's definition of admissible intrinsic evidence, as evidence that "'directly proves' the charged offense." Rose, supra, 206 N.J. at 180 (quoting United States v. Green, 617 F.3d 233, 248 (3d Cir.), cert. denied, 562 U.S. 942, 131 S. Ct. 363, 178 L. Ed. 2d 234 (2010)).
As the State argues, obstruction is elevated to a fourth-degree crime "if the actor obstructs the detection or investigation of a crime or the prosecution of a person for a crime, otherwise it is a disorderly persons offense." N.J.S.A. 2C:29-1(b). Thus, evidence of defendant's activities when Monahan tried to arrest her was not introduced as other crime evidence, but rather to prove that she was obstructing the investigation of herself for the crime of possession of drugs. It was evidence that was intrinsic to what occurred on that date and time when defendant refused to cooperate with Monahan's investigation and disobeyed the officer's order to open the door to her car. The court did not abuse its discretion by allowing this evidence to reach the jury.
In Point II, defendant argues that the court committed reversible error by not declaring a mistrial due to the prosecutor's statements made in his opening and closing statements. Defendant objects to the prosecutor's comments regarding Monahan's drug expertise and defendant's drug activity in the McDonald's parking lot, as well as the mention that Monahan knew defendant previously. The trial testimony clarified that Monahan knew defendant from a prior motor vehicle ticket. Evidence of Monahan's drug experience and defendant's illegal activity in the car that afternoon was relevant.
The prosecutor did improperly imply that defendant's three prior drug convictions affected not only her credibility, but also her character, stating:
And let's not forget that we are dealing with somebody, when you hear the defendant's version of events, that you're dealing with a person with three criminal convictions. 2002, convicted. She's given probation. Does that dissuade her? No. 2005, she's convicted of another crime. She's given probation. Does it dissuade her?
At that point, defense counsel objected, seeking a mistrial. The court gave a corrective instruction, reminding the jury that comments by counsel are not evidence. After this instruction, the prosecutor more appropriately argued that her three prior convictions affected defendant's credibility, and therefore the jury should not believe her story.
The prosecutor should not have argued that defendant's convictions reflected on her poor character. To determine whether prosecutorial misconduct in a summation warrants reversal, we must assess whether the misconduct "was so egregious that it deprived the defendant of a fair trial." State v. Frost, 158 N.J. 76, 83 (1999). In making this assessment, we must consider "the tenor of the trial and the responsiveness of counsel and the court to the improprieties when they occurred." State v. Timmendequas, 161 N.J. 515, 575 (1999), cert. denied, 534 U.S. 858, 122 S. Ct. 136, 151 L. Ed. 2d 89 (2001). The prosecution's duty to achieve justice does not forbid a prosecutor from presenting the State's case in a "vigorous and forceful" manner. State v. Ramseur, 106 N.J. 123, 320 (1987) (citation omitted), cert. denied sub nom., Ramseur v. Beyer, 508 U.S. 947, 113 S. Ct. 2433, 124 L. Ed. 2d 653 (1993). Indeed, the Supreme Court has recognized that criminal trials often create a "charged atmosphere . . . [that] frequently makes it arduous for the prosecuting attorney to stay within the orbit of strict propriety." Ibid. (alteration in original) (citation omitted). We discern no undue prejudice arising from that extremely brief portion of the summation, which was immediately addressed by the court, and, more importantly, we detect no prosecutorial misconduct when properly considering the summation as a whole. See State v. Ingram, 196 N.J. 23, 43 (2008) (evaluating the propriety of a prosecutor's summation when "[t]aken as a whole").
Given our discussion of Points I and II of defendant's brief, her third point, cumulative error, is without sufficient merit to require discussion in a written opinion. R. 2:11-3(e)(2).
The jury by its verdict did not find defendant or her boyfriend sufficiently credible to raise a reasonable doubt as to her guilt. "A defendant is entitled to a fair trial but not a perfect one." State v. Wakefield, 190 N.J. 397, 537 (2007) (quoting State v. R.B., 183 N.J. 308, 334 (2005)), cert. denied, 552 U.S. 1146, 128 S. Ct. 1074, 169 L. Ed. 2d 817 (2008). We are satisfied defendant received a fair 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