STATE OF NEW JERSEY v. FELIKS LIPINSKI

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4083-04T44083-04T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

FELIKS LIPINSKI,

Defendant-Appellant.

_________________________________________

 

Submitted May 10, 2006 - Decided May 26, 2006

Before Judges Conley and Sapp-Peterson.

On appeal from the Superior Court of New Jersey, Law Division, Union County, 03-09-0916.

Yvonne Segars Smith, Public Defender, attorney for appellant (Roger L. Camacho, Designated Counsel, of counsel and on the brief).

Zulima V. Farber, Attorney General, attorney for respondent (Joie Piderit, Deputy Attorney General, of counsel and on the brief).

PER CURIAM

Following a jury trial, defendant was convicted of fourth-degree lewdness pursuant to N.J.S.A. 2C:14-4b(1) which requires, as an element of the offense, an exposure of intimate parts to a child of less than thirteen years old for the purpose of sexual gratification. A five-year probationary term was imposed, along with the necessary fines and penalties. On appeal, defendant contends:

POINT I: THE TRIAL COURT REVERSIBLY ERRED IN FAILING TO DECLARE A MISTRIAL SUA SPONTE WHEN IT LEARNED THROUGH LIPINSKI'S DAUGHTER THAT HE WAS INTOXICATED WHEN SHE BROUGHT HIM TO THE NOVEMBER 29, 2004, PREHEARING CONFERENCE AND TO THE FIRST DAY OF TRIAL ON NOVEMBER 30, 2004, AND FURTHER THAT HE WAS TOO INTOXICATED DURING THE FIRST DAY OF TRIAL TO PARTICIPATE IN HIS DEFENSE (Not Raised Below) (U.S. Const. Amend. VI; N.J. Const. (1947) Art. I, Para. 10).

POINT II: WITNESS EDWINA CHESTNUT'S TESTIMONY AS TO LIPINSKI'S PRIOR SAME CRIME AND BAD ACT SHOULD HAVE BEEN EXCLUDED AS IRRELEVANT AND UNDULY PREJUDICIAL UNDER N.J.R.E. 403 AND 404(b). (U.S. Const. Amend VI; N.J. Const. (1947) Art. I, Para. 10).

POINT III: THE TRIAL COURT REVERSIBLY ERRED IN REJECTING DEFENSE COUNSEL'S MOTION FOR A MISTRIAL BASED ON THE PROSECUTOR'S MISCONDUCT IN IMPLYING TO THE JURY DURING HIS SUMMATION THAT MS. CHESTNUT'S TESTIMONY REGARDING LIPINSKI'S PRIOR CRIME AND BAD ACT COULD BE USED AS SUBSTANTIVE EVIDENCE OF PREDISPOSITION TO COMMIT THE CRIME IN THE CASE AT BAR. (U.S. Const. Amend. VI; N.J. Const. (1947) Art. I, Para. 10).

POINT IV: THE TRIAL COURT REVERSIBLY ERRED IN FAILING SUA SPONTE TO CONDUCT A PRETRIAL HEARING TO DETERMINE THE RELIABILITY OF THE MINOR O.L.'S STATEMENT AS TO THE INCIDENT PRIOR TO THE TIME THAT O.L. TOOK THE STAND (U.S. Const. Amend VI; N.J. Const. (1947) (Art. I, Para. 10) (Not Raised Below).

POINT V: THE TRIAL COURT ERRONEOUSLY DENIED LIPINSKI'S MOTION FOR A JUDGMENT OF ACQUITTAL ON COUNT 2, FOURTH DEGREE LEWDNESS, AT THE END OF THE STATE'S CASE PURSUANT TO R. 3:18-1 AND AGAIN AFTER THE GUILTY VERDICT AND IMMEDIATELY PRIOR TO SENTENCING PURSUANT TO R. 3:18-2 (U.S. Const. Amend. IV and XIV; N.J. Const. (1947) Art. I, Para. 10).

POINT VI: THE TRIAL COURT ERRONEOUSLY DENIED LIPINSKI'S MOTION FOR A NEW TRIAL PURSUANT TO R. 3:20- 1 ON COUNT 2 WHICH WAS MADE AFTER THE VERDICT AND IMMEDIATELY PRIOR TO SENTENCING (U.S. Const. Amend VI; N.J. Const. 1947) Art. I, Para. 10).

POINT VII: THE PORTION OF LIPINSKI'S SENTENCE WHICH IMPOSED THE MAXIMUM PRISON TERM FOR A FOURTH DEGREE LEWDNESS CONVICTION IF HE VIOLATES THE TERMS OF HIS PROBATION IS UNCONSTITUTIONAL, ILLEGAL AND EXCESSIVE (U.S. Const. Amend. VI; N.J. Const. (1947) Art. I, Para. 10).

We are convinced point II requires a reversal. The remaining points are, therefore, moot and we do not address them.

Defendant, who was fifty-six at the time of the incident, and O.L., then eleven years old, lived in the same apartment complex; she on the second floor, he on the first floor. On February 9, 2003, O.L. was on the first floor visiting a friend who lived in an apartment on that floor. She claims to have seen defendant pass her in the hallway with his penis exposed, and to have had eye contact with him. The passing was brief. When she looked back at defendant's back, she asserted she saw arm motion that would suggest he was scratching his groin area. That is the factual predicate for the charge.

Defendant testified during the trial and adamantly denied the encounter occurred. An alternative defense was presented through the testimony of his daughter who essentially told the jury that defendant was an habitual drunk. Defendant, himself, denied this.

In rebuttal, the State was allowed to offer, over the objection of defense counsel, the testimony of another tenant in the apartment complex. Although the record does not reveal her age, it is clear she was an adult. Her testimony was that on a prior occasion, while she was in the laundry room on the first floor, she saw defendant leave his apartment with his penis exposed. Indeed, in response to the question: "[Y]ou had seen him before walking in this fashion?", she responded "Yes."

Here is the limiting instruction the judge gave the jury on this prior bad conduct evidence:

In this regard there was testimony . . . this morning concerning a prior incident with the defendant when he was coming out of the laundry room. This is not evidential and should not be considered by you as any proof of whether the defendant did the act alleged on the day in question. It is not for that purpose at all and it shouldn't be discussed by you for that purpose at all. It is merely brought out to show the defendant's motive or intent that he was aware of what he was doing on the day in question. That is the only way you can use that.

We digress for a moment at this point. Even if the prior bad conduct evidence were admissible, this instruction is woefully inadequate. To begin with, it misstates the facts - defendant was not "coming out of the laundry room" where the witness was. His proximity to her was much more distant and, importantly, there is no indication that he was aware of her presence. This is significant as the admission of this evidence was, purportedly, to show that at the time of the alleged exposure to O.L., defendant was aware of her presence and, so aware, intentionally exposed himself to her. Furthermore, simply telling the jury that, while not "evidential," and was only to show defendant's "motive or intent that he was aware of what he was doing on the day in question," without explaining just how the evidence might do that, is just not good enough.

In any event, we are convinced there was no valid basis for this evidence, other than to shore up the State's evidence as to O.L. Indeed, the prosecutor clearly told the jury to convict defendant not just on the O.L. incident, but on the prior incident, as well. In this respect, the prosecutor remarked to the jury:

. . . The sexual conduct is that exposure, that lewdness. We have to show that he was aware that he was being lewd. That is the sexual conduct and you can infer from contemporary moral standards that that would impair or are debauch an 11 year-old's morals. Why should she have to look at a man's penis? Why should [the other witness] have to look at [defendant's] penis?

Of course, "[e]vidence of other crimes, wrongs, or acts is not admissible to prove the disposition of a person in order to show that [he] acted in conformity therewith." N.J.R.E. 404(b). See also State v. Covell, 157 N.J. 554, 563-64 (1999). Such evidence invariably is extremely prejudicial. State v. G.V., 162 N.J. 252, 262-63 (2000); State v. G.S., 145 N.J. 460, 468 (1996); State v. Stevens, 115 N.J. 289, 300 (1989). Nonetheless, under N.J.R.E. 404(b), such evidence may be admissible to prove motive, intent, plan, knowledge, identity, or absence of mistake or accident. If so admitted, it must then be accompanied by limiting instructions, carefully tailored to the factual context of the evidence so that jurors can understand and apply the limitation. State v. G.V., supra, 162 N.J. at 262-63; State v. G.S., supra, 145 N.J. at 471-72; State v. Cofield, 127 N.J. 328, 340-41 (1992); State v. Stevens, supra, 115 N.J. at 304. See State v. Jenkins, 356 N.J. Super. 413, 430-31 (App. Div. 2003), aff'd on other grounds, 178 N.J. 347, 364-69 (2004).

A four-prong test must be applied:

1. The evidence of the other crime must be admissible as relevant to a material issue;

2. It must be similar in kind and reasonably close in time to the offense charged;

3. The evidence of the other crime must be clear and convincing; and

4. The probative value of the evidence must not be outweighed by its apparent prejudice.

[State v. Cofield, supra, 127 N.J. at 338.]

The inquiry as to its admissibility must be "searching," State v. Reddish, 181 N.J. 553, 608 (2004), as N.J.R.E. 404(b) is "a rule of exclusion rather than a rule of inclusion. . . . " State v. Darby, 174 N.J. 509, 520 (2002).

Here, there was no "searching" inquiry. Indeed, there was not even a Rule 104 hearing to determine its admissibility. Applying the Cofield test to the present facts, we focus on the first and second prongs as they clearly are not met. The State asserts that the prior incident disproves that defendant was drunk at the time of the alleged exposure to O.L. But why is that? Because the witness said she did not smell any alcohol? Likely not, as she was twenty feet away. There is nothing in her testimony that would allow a reasonable fact-finder to conclude that she could have possibly been able to discern defendant's mental state, i.e., whether it was inebriated.

But more troubling is the simple fact that this prior incident had nothing in common with the alleged lewdness incident with O.L. To begin with, it did not involve exposure to a child. And it did not involve any indicia of an awareness on defendant's part that he was exposing himself to another, not to mention that it be for sexual gratification.

Propensity evidence is the danger N.J.R.E. 404(b) serves to protect against. State v. Hernandez, 170 N.J. 106, 118-19 (2001). "There is widespread agreement that other-crime evidence has a unique tendency to turn a jury against the defendant." State v. Stevens, supra, 115 N.J. at 302. See State v. Jenkins, supra, 178 N.J. at 365-69. That is what this evidence was.

Reversed and remanded for a new trial. We do not retain jurisdiction.

 

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A-4083-04T4

May 26, 2006