STATE OF NEW JERSEY v. QINGPEI WANG

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3072-07T43072-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

vs.

QINGPEI WANG,

Defendant-Appellant.

________________________________________________________

 

Argued December 17, 2008 - Decided

Before Judges Parrillo, Lihotz and Messano.

On appeal from the Superior Court of New Jersey, Law Division, Morris County, Municipal Appeal No. 06-111.

Gordon S. Graber argued the cause for appellant (Sullivan and Graber, attorneys; Mr. Graber and Chryzanta K. Hentisz, on the brief).

Paula Jordao, Assistant Prosecutor, argued the cause for respondent (Robert A. Bianchi, Morris County Prosecutor, attorney; Ms. Jordao, on the brief).

PER CURIAM

Defendant Qingpei Wang appeals from the Law Division's judgment of conviction following the de novo appeal from her conviction for prostitution, N.J.S.A. 2C:34-1(b)(1), in the Mountain Lakes municipal court. On appeal, defendant argues the following:

POINT I

THE ADMISSION OF TESTIMONY REGARDING SPECIFIC ACTS OF CONDUCT AND THE COURT'S RELIANCE ON THAT TESTIMONY TAINTED THE DEFENDANT'S TRIAL AND PRODUCED AN UNJUST RESULT.

A. THE PROSECUTOR IMPROPERLY QUESTIONED WITNESSES REGARDING PREJUDICIAL SPECIFIC INSTANCES OF CONDUCT IN ORDER TO ATTACK THEIR CREDIBILITY.

POINT II

EVIDENCE PRODUCED AT TRIAL DID NOT SUPPORT THE IDENTIFICATION OF THE DEFENDANT AS THE PERPETRATOR OF THE OFFENSE.

POINT III

THIS COURT SHOULD REVIEW THE FACTUAL DETERMINATIONS BELOW AND REVERSE THE DECISION OR REMAND TO ANOTHER MUNICIPAL COURT.

POINT IV

DEFENDANT CANNOT BE CONVICTED OF AN OFFENSE WHERE THE STATE DID NOT PROVE THE ELEMENTS OF THE OFFENSE CHARGED.

We have considered these arguments in light of the record and applicable legal standards. We reverse and remand the matter for a new trial.

I.

We recap the testimony adduced at defendant's municipal court trial. The State's sole witness was Detective Shawn Bennett of the Mountain Lakes Police Department. On July 11, 2006, at about four o'clock in the afternoon, responding to complaints of prostitution, Bennett arrived at the premises of the Asian Therapy Center, a massage parlor on Route 46 West. He was in plainclothes and rang the doorbell to Suite B-10. An Asian woman, who Bennett subsequently identified in court as defendant, answered the door. Bennett asked for a massage and defendant escorted him down the hallway into a room, telling him to undress. When defendant saw Bennett still had his underwear on, she told him to take them off.

Bennett lay down on the massage table on his stomach and defendant proceeded to massage his back, shoulders and legs; he turned over, and defendant then massaged his head, chest and legs. Bennett claimed defendant "continuously . . . reached under" a white bath towel placed across the genital area, "coming in contact with [his] genitals." Defendant asked Bennett if it was "okay" to touch him there and, when Bennett gave a hand gesture showing consent, defendant grabbed his penis "underneath the towel and began to manipulate it." When defendant applied baby oil to her hands and continued to manipulate Bennett's penis, he stopped her by saying "no, thank you, it's okay." Defendant then covered up Bennett with the towel and told him that he was done. She told him that the price was sixty dollars, and Bennett gave her that, plus a twenty dollar gratuity, which the detective testified was "normal at . . . a legitimate massage parlor." Bennett left without arresting defendant or asking her name.

On August 3, Bennett returned to the Therapy Center to serve defendant with "a warrant." He still did not know her name. When Bennett saw defendant was not there, he spoke to two other Asian women, both of whom "spoke very little English." Bennett obtained a Nevada driver's license with defendant's photo on it, made a copy of the license, and "issue[d] a warrant" in defendant's name which he served on August 31 "via mail."

On cross-examination, Bennett acknowledged going to the premises again on August 4 in an attempt to serve "zoning complaints" on Oliver Chou, the "owner of the suite." A woman answered, but Bennett claimed he did not get a good look at her because she only partially opened the door. The woman took the complaints and signed the name "Jennifer" on the copy she returned to Bennett. Subsequently, Bennett met Chou, and asked him who worked there. Chou supplied defendant's name and gave Bennett defendant's Nevada driver's license.

Defendant asserted alibi as her defense to the charge. Her first witness was Chingwa Wong, a woman who was hired by defendant as a cashier and manager of the Therapy Center. Wong claimed that defendant, who went by the English name "Jennifer," did not work on the premises on July 11, and that two other women, Shasha and Wendy, were working at four in the afternoon on that day.

Li Wang, a friend of defendant, testified that on July 11, defendant came to her house at about one p.m. with items she wanted Li to deliver to her son in China. Li, who came from the same hometown in China as defendant, was scheduled to return to China on July 19. After dropping off the items, Li claimed that she and defendant went to the Phillipsburg Mall together to buy more goods for defendant's son, and stayed approximately two to three hours at the mall, ultimately having dinner together at a Kentucky Fried Chicken store. Li also confirmed that defendant used the English name "Jennifer."

Defendant testified "Shasha and Wendy w[ere] working days" at the Therapy Center around July 11. Defendant acknowledged that she was the manager and that a one-hour massage cost $60. She also testified that "sometimes the girls want to make more money," and that she did not "know what they do in the room." Defendant claimed that it was against the Therapy Center's "policy" for the employees to do anything "illegal," and that any employee violating the policy would be fired immediately. A copy of the written policy was moved into evidence. Defendant corroborated Li's account regarding their whereabouts on the day in question. Defendant claimed that it was she who answered the door and accepted the zoning violations from Bennett on August 4.

On cross-examination, and over objection, defendant was questioned about her possession of a Nevada driver's license, a "problem with [her] New Jersey driver's license[,]" and some discrepancy regarding her date of birth. The following exchange took place:

Prosecutor: Do you remember surrendering your license your New Jersey license in Nevada?

Defense counsel: Objection, Your Honor. It's irrelevant to the case . . . .

Judge: All right. For the record, you're objecting. For the record, I'm allow[ing] it. So you don't have to make any more objections --

. . . .

-- on this area. This is relevant to credibility. It's as simple as that.

. . . .

If someone works in New Jersey and lives in East Brunswick as your client testified . . . there's probably some degree of concern about why we have a Nevada license.

. . . .

I'm not prejudging anything, but let's say [the prosecutor] proves that she lied to get a Nevada license. Well, then maybe she lied about where she was on July 11th. I mean, that that's maybe hard to connect those two concepts, but it's a theory that maybe [the prosecutor] is trying to pursue.

Defendant was also questioned about the Therapy Center's practices with regard to tax forms and recordkeeping, including whether defendant had the social security numbers and addresses for all of her employees and whether she had her employees fill out W-2 and 1099 forms. The prosecutor asked defendant if she had "consider[ed] the fact that [she] had to pay unemployment taxes for these people?" Once again, defense counsel objected on the basis of relevancy, but was overruled by the judge who found the questioning "goes to credibility."

Oliver Chou was defendant's final witness. He identified the lease between himself and defendant for the use of the premises, as well as a copy of defendant's driver's license which he acknowledged giving to Bennett.

The municipal court judge found Bennett to be a credible witness and defendant and her witnesses to be incredible. In recounting defendant's testimony, the judge noted:

I find her . . . inability to explain things to be rather incredible. I do find that she initially did not want to answer questions that she felt might implicate her. She's a New Jersey resident/she's not a New Jersey resident. She has a Nevada license.

The judge also referenced defendant's lack of "record keeping" at the business, finding "no W-2s or 1099s" existed for the Therapy Center's employees. Parenthetically referring to N.J.S.A. 2C:34-1a(3), the definition of a "house of prostitution," the judge took note:

There's also a section by the way that implicates the owner or the manager of a massage therapy place if there is sexual activity going on and they're paid. Then that's certainly a benefit to the owner or the manager, and the owner or the manager can be charged. And, of course, [defendant] testified that she's the owner and the manager of that business.

The judge found defendant violated N.J.S.A. 2C:34-1(b)(1), fined her $1,000, and assessed the appropriate statutory penalties.

On appeal to the Law Division, defendant argued 1) that the State failed to prove beyond a reasonable doubt that defendant was the individual who masturbated Bennett on the day in question; 2) that the State failed to prove all the elements of the offense because Bennett paid the "normal fee" for a massage, and no greater amount for the sexual activity; and 3) that the municipal court judge's credibility findings were the product of "being angry, frustrated, confused and dismayed at defense counsel's behavior[.]"

The Law Division judge rejected the arguments and found defendant guilty of the charge of prostitution. He reduced the fine, however, to $500, and this appeal ensued.

II.

In reviewing de novo Law Division trials of municipal court appeals, we consider only whether there is sufficient credible evidence present in the record to uphold the findings of the Law Division, not the municipal court. State v. Johnson, 42 N.J. 146, 162 (1964); Pressler, Current N.J. Court Rules, comment 7 on R. 3:23-8 (2009). We do not "'weigh the evidence, assess the credibility of the witnesses, or make conclusions about the evidence.'" State v. Locurto, 157 N.J. 463, 472 (1999) (quoting State v. Barone, 147 N.J. 599, 615 (1997)). However, if evidence was improperly admitted before the municipal court, the Law Division judge has an obligation to strike the evidence and consider whether the State has carried its burden of proof or not. See State v. Sparks, 261 N.J. Super. 458, 461 (App. Div. 1993); See also accord State v. Musgrave, 171 N.J. Super. 477, 479 (App. Div. 1979).

We find merit in the first point defendant raises and conclude that reversal of her conviction is warranted on that ground. Since the matter may be tried again, we address the remaining points she raises for the purpose of future guidance.

A.

In this case, the Law Division judge gave "due although not necessarily controlling, regard" to the municipal court judge's opportunity to observe the witnesses. Johnson, supra, 42 N.J. at 157. He specifically found the testimony presented by the State to be credible, and the defense witnesses to lack credibility, citing at length the municipal court judge's findings regarding defendant's testimony, including the cross-examination as to her Nevada driver's license and the lack of payroll records and tax forms for employees of the Therapy Center.

While the Law Division judge applied the appropriate standard of review, we conclude the cross-examination of defendant regarding her Nevada driver's license and the lack of proper record keeping as to the Therapy Center was improper because the evidence lacked any relevancy to the charge at hand, and because its use to attack defendant's credibility ran afoul of N.J.R.E. 607, 608, and 404. Because this evidence was improperly admitted, was relied upon by both judges, and was integral to their respective credibility determinations, reversal of defendant's conviction is required.

It is axiomatic that the evidence was not intrinsically relevant to the actual charge before the municipal court because it lacked any "tendency in reason to prove or disprove" the only "fact of consequence to the determination" of the charge, i.e. was defendant the person who committed prostitution by masturbating Bennett? N.J.R.E. 401. It was only admissible if permitted by N.J.R.E. 607, which allows the admission of extrinsic evidence "relevant to the issue of credibility . . . for the purpose of impairing or supporting the credibility of a witness." Introduction of evidence under Rule 607 is expressly limited by N.J.R.E. 405 and N.J.R.E. 608.

Rule 608(a) permits "[t]he credibility of a witness [to] be attacked . . . by evidence in the form of opinion or reputation, provided, however, that the evidence relates only to the witness' character for truthfulness or untruthfulness . . . ." Furthermore, "a trait of character cannot be proved by specific instances of conduct," except those resulting in a criminal conviction. N.J.R.E. 608(a); see N.J.R.E. 609 (permitting impeachment of credibility by prior criminal conviction); see also N.J.R.E. 405 (limiting proof of character to "reputation . . . opinion, or evidence of conviction of a crime").

The interplay of these rules was best summarized by the Supreme Court in State v. Guenther, 181 N.J. 129 (2004), where it noted,

[O]ur rules permit evidence in the form of opinion, reputation, or a prior criminal conviction to attack a witness's credibility by establishing the witness's character for untruthfulness. A party may introduce such evidence for the purpose of asking a jury to draw an inference that a witness with a reputation for untruthfulness is capable of lying on the stand. However, evidence of specific instances of conduct--other than a prior conviction--to prove the character trait of untruthfulness is prohibited.

[Id. at 140 (internal citations omitted).]

The Guenther court cited with approval, State v. De Paola, 5 N.J. 1 (1950), as illustrative of this point. Ibid.

In De Paola, a murder case, the Court concluded that it was reversible error to permit cross-examination of the defendant regarding false answers he provided in liquor license applications. Id. at 9-10. The Court reasoned, "[t]he acts . . . admittedly had nothing whatsoever to do with the charge upon which the defendant was being tried[,] [] were unrelated to it in point of time and fact[,] [and] [t]he defendant had not been convicted for perjury or false swearing by reason of his misconduct in this respect." Id. at 10.

It would appear that the municipal court judge, in overruling defendant's objection, accepted that the prosecutor's cross-examination might yield evidence of defendant's character trait for untruthfulness, noting that if she "lied to get a Nevada license . . . then maybe she lied about where she was on July 11th[.]" However, it has long been held that the defendant's "mere taking of the stand . . . does not provide justification for the State's going forth with 'bad character' evidence. "Biunno, Current N.J. Rules of Evidence, comment 3 on N.J.R.E. 404 (2008)(citing State v. Linder, 170 N.J. Super. 548, 557-558 (App. Div. 1979)(holding, "[w]here . . . a defendant testifies on his own behalf, he does not thereby put into issue his general character or propensities")).

As in De Paola, whether defendant lied to obtain a Nevada driver's license, or whether she appropriately maintained necessary tax and payroll information on her employees had nothing to do with the charge of prostitution. Nor had defendant been convicted of any offense regarding this conduct. Thus, under Rule 608, questioning her about it was impermissible.

Moreover, even if the evidence was not seen as an attack upon defendant's character per se, it was inadmissible under Rule 607. "Although extrinsic evidence may be admitted to impeach a witness . . . its probative value as impeachment evidence must be assessed independently of its potential value as substantive evidence." Green v. N.J. Mfrs. Ins. Co., 160 N.J. 480, 494 (1999); see also Biunno, Current N.J. Rules of Evidence, comment 1 on N.J.R.E. 607 (2008)(noting "[t]he only evidence that may be introduced is that which contradicts or calls into question the witness's version of the facts; only that evidence is relevant"); and see State v. Hutchins, 241 N.J. Super. 353, 361 (App. Div. 1990)(noting "[i]rrelevant evidence which might improperly affect a witness' credibility may not be admitted into evidence"). Here, whether defendant lied to obtain a Nevada driver's license or whether she kept appropriate business records had nothing to do with whether she was, or was not, the woman who engaged in prostitution with Bennett.

Lastly, to the extent the prosecutor's cross-examination intimated that defendant had committed a separate crime or civil wrong, it was prohibited by N.J.R.E. 404(b)(barring evidence of "other crimes, wrongs, or acts . . . to prove the disposition of a person in order to show that such person acted in conformity therewith"). While such evidence may be admissible to impeach a testifying defendant's credibility, State v. Lykes, 192 N.J. 519, 537 (2007), it must still be evaluated under the four-prong test enunciated in State v. Cofield, 127 N.J. 328, 338 (1992). Id. at 535. It is obvious to us that in this case, the evidence could not pass even the first prong of the Cofield analysis, i.e., "[t]he evidence of the other crime must be admissible as relevant to a material issue." Cofield, supra, 127 N.J. at 338. Defendant's possession of a Nevada's driver's license and her failure to keep payroll and tax records were not relevant to whether she committed prostitution.

We reject the State's arguments that defendant failed to raise the issue below, thus barring our consideration of it on appeal, Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973), or that she "opened the door" to the objectionable cross-examination. First, defendant clearly raised the issue at trial before the municipal court judge, and, to the extent her de novo appeal challenged the judge's credibility determinations, she adequately challenged the admission of the evidence below. Second, it was the prosecutor, not defendant, who introduced her license in evidence. She merely attempted to explain why it was a Nevada license, and, in our opinion, that did not "open the door" to the full frontal assault on her credibility. As to the lack of business and tax records, defendant did not raise the issue at all during her direct testimony, nor, in our opinion, did any of her answers permit the innuendo raised by the prosecutor's vigorous cross-examination thereafter.

When prejudice inures to a defendant based upon an erroneous evidence ruling, see State v. Benthall, 182 N.J. 373, 385 (2005), and that error is "clearly capable of producing an unjust result," Rule 2:10-2, reversal is required. In this case, both judges below relied extensively upon defendant's answers to cross-examination questions that were improper in deciding the critical credibility issue raised by the conflicting evidence. As a result, we reverse defendant's conviction and remand the matter for a new trial. Because the municipal court judge who originally heard the matter should not be placed in the position of having to judge defendant's credibility anew if she testifies again, we further order that the new trial, if one occurs, take place before a different judge.

B.

We address the other two points defendant raises for purposes of providing guidance in the event the case is re-tried. She contends that the State failed to adequately prove identification, and failed to prove all the necessary elements of prostitution, N.J.S.A. 2C:34-1b(1). We conclude both arguments lack sufficient merit to warrant extensive discussion. R. 2:11-3(e)(2). We add only these brief comments.

While the conduct of the investigation leading to defendant's identification and the issuance of a summons was unusual at the least, Bennett identified defendant in the courtroom as the person who engaged in prostitution on the day in question. Defendant's arguments in this regard all go to the credibility of Bennett in general, as well as the certainty of his identification in particular, but they do not form a basis for reversal. If Bennett's in-court identification of defendant as the woman who engaged in prostitution with him is believed beyond a reasonable doubt, then the State has carried its burden of proof. Defendant conceded as much at oral argument before us.

Defendant argues that the State failed to prove she engaged in sexual activity in exchange for something of economic value. She claims that because Bennett testified that he paid the standard fee for a massage, sixty dollars, a fact corroborated by defendant, plus a tip of twenty dollars, and paid nothing more for the sexual activity, the State's proofs were deficient. We find no merit to this contention.

N.J.S.A. 2C:34-1b(1) provides that "[a] person commits an offense if . . . the actor engages in prostitution[.]" "Prostitution" is defined as "sexual activity with another person in exchange for something of economic value, or the offer or acceptance of an offer to engage in sexual activity in exchange for something of economic value." N.J.S.A. 2C:34-1a(1). "Sexual activity" includes "masturbation" or the "touching of the genitals." N.J.S.A. 2C:34-1a(2). If Bennett's testimony is believed beyond a reasonable doubt, defendant engaged in sexual activity and received something of value in return. Whether she would have received more money had Bennett not told her to stop is irrelevant.

 
Reversed. The matter is remanded for a new trial in the municipal court before a different municipal court judge. We do not retain jurisdiction.

It is apparent that Bennett attempted to serve, and thereafter successfully served defendant by mail, with a "summons" complaint, not an arrest warrant. R. 7:2-1(b) and (c).

The Guenther court carved out a narrow exception to this prohibition, permitting "in limited circumstances and under very strict controls[,] a defendant [] the right to show that a victim-witness has made a prior false criminal accusation for the purpose of challenging that witness's credibility." Guenther, supra, 181 N.J. at 154. This led to the subsequent adoption of N.J.R.E. 608(b). Biunno, Current N.J. Rules of Evidence, comment 2 on N.J.R.E. 608 (2008).

Despite the municipal court judge's reference to "a section . . . that implicates the owner or the manager of a massage therapy place if there is sexual activity going on and they're paid[,]" the State did not contend that defendant owned or managed a "house of prostitution," N.J.S.A. 2C:34-1a(3), and was therefore guilty of "promoting prostitution," N.J.S.A. 2C:34-1b(2). Evidence of defendant's maintenance of personnel and tax records of her employees, or her failure to do so, might be relevant to such a charge.

(continued)

(continued)

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A-3072-07T4

January 20, 2009