STATE OF NEW JERSEY v. MICHAEL SAPIENZA

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5758-05T45758-05T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MICHAEL SAPIENZA,

Defendant-Appellant.

_______________________________

 

Submitted November 19, 2008 - Decided

Before Judges Parrillo and Lihotz.

On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 05-06-1397.

Yvonne Smith Segars, Public Defender, attorney for appellant (Glenn D. Kassman, Designated Counsel, of counsel and on the brief).

Anne Milgram, Attorney General, attorney for respondent (Carol M. Henderson, Assistant Attorney General, of counsel and on the brief).

PER CURIAM

Defendant Michael Sapienza appeals from his conviction for second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a), and third-degree unlawful possession of a weapon without a permit, N.J.S.A. 2C:39-5(b). The court sentenced defendant to two concurrent five-year terms of incarceration with a stipulated three-year period of parole ineligibility. At the close of the State's case, the trial court granted defendant's acquittal dismissing the counts of the motion for indictment charging first-degree attempted murder, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:11-3, fourth-degree aggravated assault by pointing a firearm, N.J.S.A. 2C:12-1(b)(4), and third-degree terroristic threats, N.J.S.A. 2C:12-3(a) and (b). Defendant's post-conviction motion for acquittal or, alternatively, for a new trial, was denied.

On appeal, defendant presents the following issues for our review:

POINT I.

BECAUSE ADMISSION OF THE RECORDING OF THE 911 CALL VIOLATED DEFENDANT'S CONSTITUTIONAL RIGHT OF CONFRONTATION, HIS CONVICTION FOR POSSESSION OF A WEAPON FOR AN UNLAWFUL PURPOSE MUST BE REVERSED.

POINT II.

BECAUSE THE COURT FAILED TO INSTRUCT THE JURY THAT DEFENDANT'S UNLAWFUL POSSESSION OF THE WEAPON COULD NOT SATISFY THE "UNLAWFUL PURPOSE" ELEMENT BY WHICH DEFENDANT COULD BE CONVICTED OF POSSESSION OF A WEAPON FOR AN UNLAWFUL PURPOSE, DEFENDANT'S CONVICTION FOR THE LATTER OFFENSE MUST BE REVERSED.

POINT III.

BECAUSE THE EVIDENCE PRESENTED AT TRIAL WAS INSUFFICIENT TO PROVE DEFENDANT'S "UNLAWFUL PURPOSE" BEYOND A REASONABLE DOUBT, HIS CONVICTION FOR POSSESSION OF A WEAPON FOR AN UNLAWFUL PURPOSE MUST BE REVERSED.

We have considered each argument, in light of the record and applicable law, along with the arguments of counsel. We find defendant's arguments unpersuasive and affirm.

Defendant's conviction arose from a domestic violence dispute with his wife. On March 19, 2005, at 12:45 a.m., Margaret Sapienza reported an emergency to a 911 operator. Margaret stated she told her husband, defendant, she desired a divorce. Defendant had been drinking and he threatened Margaret with a gun. During the call, Margaret told the operator defendant left the house to look for her. She grabbed the kitchen phone, exited the residence and hid on the side of her neighbor's house. Margaret continued the conversation with the 911 operator. She stated defendant entered his silver Ford Explorer and drove away.

Officer Matthew Cherney of the Howell Township Police Department arrived at the residence and met Margaret. He reported Margaret was crying, upset, her neck was red at the throat area and she had a bump on the back of her head. Margaret was wearing pajamas and no shoes.

Brick Township Police Officer Mark Nixon stopped defendant's vehicle on an exit ramp of the Garden State Expressway. Defendant jumped from his vehicle holding a dark object in his hand that Nixon believed was a gun. Nixon ordered defendant to lie on the ground. The object held by defendant was a cellular telephone. Defendant was handcuffed and placed under arrest. Officer Mark Storch approached defendant's vehicle. Officer Storch noticed defendant smelled like alcohol and had bloodshot eyes. Using a flashlight, he viewed the Explorer's interior. Officer Storch saw a bottle of Sambucca in the back seat and another on the passenger's seat. As Officer Storch retrieved the liquor, he observed a .25 caliber handgun wedged between the driver's seat and the center console. The gun was warm.

A search of defendant's residence by Officer Cherney revealed a bullet hole in the kitchen wall and a metal shell casing under the kitchen table. Analysis verified the shell had been discharged from the gun found in defendant's vehicle.

Prior to trial, defendant filed two suppression motions. First, to suppress Margaret's statements recorded on the 911 tape, and second, to suppress the gun found in the warrantless search of defendant's vehicle. Margaret's statements to the operator were deemed admissible, as an exception to the exclusion of hearsay because they were either excited utterances or present sense impressions. The statements made to Officer Cherney were suppressed as hearsay. The warrantless search of defendant's vehicle disclosing the gun found between the seats was upheld because the weapon was in plain view.

On appeal, defendant challenges the admissibility of the 911 tape, arguing its use at trial without Margaret's testimony violated his right to confront the accusing witness as expounded in Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004). The crux of defendant's argument states Margaret's statements were not reliable when made because she was contemplating divorce. Further, she appeared before the Family Part seeking dismissal of the temporary restraining order entered pursuant to the Prevention of Domestic Violence Act ("Domestic Violence Act"), N.J.S.A. 2C:25-17 to 35, and testified the incident was an accident.

We owe no deference to the trial court's legal conclusion or interpretation of the law. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995). We review de novo the trial court's application of the relevant legal principles to the established facts. State v. Harris, 181 N.J. 391, 416 (2004), cert. denied, 545 U.S. 1145, 125 S. Ct. 2973, 162 L. Ed. 898 (2005). Defendant maintains the use of the 911 tape was inadmissible hearsay, or, alternatively, if admissible, error resulted because it was testimonial and must be excluded.

Both the Federal and New Jersey Constitutions protect the right of criminal defendants to confront the State's witnesses against them. U.S. Const. amend. VI; N.J. Const. art. I, 10; State v. Kent, 391 N.J. Super. 352, 375 (App. Div. 2007); State v. Budis, 125 N.J. 519, 530 (1991). "Generally, when the State moves to introduce an inculpatory, out-of-court statement of a non-testifying witness, the court must be satisfied that the statement does not violate the defendant's right of confrontation under the Sixth Amendment, Crawford, supra, 541 U.S. at 53-54, 124 S. Ct. at 1365-66, 158 L. Ed. 2d at 194, and that the statement fits within one of the exceptions to the hearsay rule of preclusion, or is admissible by other law. N.J.R.E. 802." State v. Byrd, 393 N.J. Super. 218, 230 (App. Div. 2007), cert. granted, 194 N.J. 445 (2008); State v. Chun, 194 N.J. 54, 138-39 (2008), cert. denied, 129 S. Ct. 158, 172 L. Ed. 2d 41 (2008).

Even though "hearsay rules and the Confrontation Clause are generally designed to protect similar values and stem from the same roots," White v. Illinois, 502 U.S. 346, 353, 112 S. Ct. 736, 741, 116 L. Ed. 2d 848, 857 (1992) (citations and internal quotation marks omitted), the admission of out-of-court statements falling within "firmly rooted hearsay exceptions" was permitted, notwithstanding the Confrontation Clause, because they were "so trustworthy that adversarial testing c[ould] be expected to add little to [their] reliability." Id. at 357, 112 S. Ct. at 743, 116 L. Ed. 2d at 860 (internal quotation marks omitted).

In his argument, by implication, defendant disagrees Margaret's statements qualify as excited utterances. N.J.R.E. 803(c)(2) defines an "excited utterance" as, "a statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition and without opportunity to deliberate or fabricate." See State v. Bass, 221 N.J. Super. 466, 480-81 (App. Div. 1987), certif. denied, 110 N.J. 186 (1988). "The Rule is 'based upon the premise that the excitement caused by the observation of a startling event insures the reliability of a spontaneous statement about it made at or near the time of the event's occurrence.'" State v. Long, 173 N.J. 138, 158 (2002) (quoting Biunno, Current N.J. Rules of Evidence, comment 1 on N.J.R.E. 803(c)(2), at 905 (2002)). "In deciding whether there was an opportunity to fabricate or deliberate, a court should consider 'the element of time, the circumstances of the incident, the mental and physical condition of the declarant, and the nature of the utterance.'" Id. at 159 (quoting State v. Williams, 106 N.J. Super. 170, 172 (App. Div.), certif. denied, 55 N.J. 78 (1969), cert. denied, 397 U.S. 1057, 90 S. Ct. 1405, 25 L. Ed. 2d 675 (1970)). This entails a fact-sensitive analysis and requires the trial court to determine "'whether the facts and circumstances reasonably warrant the inference that declarant was still under the stress of excitement caused by the event.'" State v. Cotto, 182 N.J. 316, 328 (2005) (quoting State v. Baluch, 341 N.J. Super. 141, 182 (App. Div. 2001)).

We reject defendant's first contention, and conclude the 911 statements are admissible as excited utterances. Margaret grabbed the cordless telephone after defendant grabbed her throat, banged her head against the wall and discharged his gun. Her tone of voice, as described in the record, reflects a spontaneous call for emergency aid, not a reasoned calculated report to potentially bolster a matrimonial action.

Despite a finding of the admissibility of the statements as an exception to the hearsay bar, the second part of defendant's argument suggests the statements are testimonial and their admission violated Crawford. We disagree.

In Crawford, the Court held the Confrontation Clause precludes the admission of testimonial hearsay evidence, regardless of its reliability, unless "the declarant is unavailable, and only where the defendant has had a prior opportunity to cross-examine." Id. at 59, 124 S. Ct. at 1369, 158 L. Ed. 2d at 197. This is because the Confrontation Clause "commands, not that evidence be reliable, but that reliability be assessed in a particular manner: by testing in the crucible of cross-examination." Id. at 61, 124 S. Ct. at 1370, 158 L. Ed. 2d at 199.

The United States Supreme Court clarified the difference between admissible nontestimonial statements from those testimonial inadmissible ones in Davis v, Washington, 547 U.S. 813, 822, 126 S. Ct. 2266, 2273-274, 165 L. Ed. 2d 224, 237 (2006), as follows:.

Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.

One of the two cases consolidated in Davis, like the instant matter, involved the admissibility of a 911 tape made during a domestic disturbance between the caller and her former boyfriend. Id. at 816, 126 S. Ct. at 2271, 165 L. Ed. 2d at 234. The Supreme Court concluded the statements made to a 911 operator during an emergency were "nontestimonial," whereas statements to investigating officers, after they secure the scene of prior domestic violence and begin to ask formal questions, were "testimonial." Id. at 828-29, 126 S. Ct. at 2277-78, 165 L. Ed. 2d at 240-42. A major distinction between a 911 call and a response to a police interrogation is the existence of an ongoing situation, rather than descriptions of past events used for purposes of a police investigation. Davis, supra, 547 U.S. at 827, 126 S. Ct. at 2276, 165 L. Ed. 2d at 240. This is true even if the operator takes a description of the perpetrator, so long as it is for the purpose of stopping the emergency. Ibid.

Applying the Davis analysis, we agree with the trial judge that Margaret's statements to the 911 operator objectively reflect she was seeking police assistance to meet an ongoing emergency. She was hiding outside her home, dressed in pajamas, and barefoot despite the low temperature. Her voice reflected she was excited and scared; at times she whispered and at other times she was difficult to understand. When Margaret saw defendant at the door and then exit the home, she reported those events as they unfolded. No evidence suggests Margaret deliberated or fabricated the events. In addition, it is clear she was not reciting statements to build a foundation for a criminal prosecution. Ibid. Therefore, Margaret's statements were not testimonial and properly admitted.

Next, defendant argues the jury charge did not clearly describe the "unlawful purpose" element of the weapons possession offense. N.J.S.A. 2C:39-4(a). Defendant suggests the charge must instruct the jury it was "obliged to consider whether the State has proved the specific unlawful purpose charged and not the mere unlawful possession of the weapon[.]"

Defendant lodged no objection to the comments, and so we review them utilizing the plain error standard. R. 2:10-2; see State v. Macon, 57 N.J. 325, 336 (1971) (noting the error must be "sufficient to raise a reasonable doubt as to whether [it] led the jury to a result it otherwise might not have reached").

In our review of a jury charge, we determine whether, taken as a whole, the charge is ambiguous or misleading as to the controlling law. State v. R.B., 183 N.J. 308, 324 (2005). Here, the trial judge followed the Model Jury Charges (Criminal). Generally, the model charges may be followed when they meet the facts adduced at trial. Id. at 325. Moreover, if neither party requests to deviate from the model charge, the judge is not required to do so. State v. Wilson, 362 N.J. Super. 319, 328 (App. Div.), certif. denied, 178 N.J. 250 (2003).

The portions of the jury charge related to this charge are as follows:

In this case the State contends that the defendant's unlawful purpose in possessing the firearm was to assault or threaten or harass his wife with it.

. . . .

You must not rely upon your own notions of the unlawfulness of some other undescribed purpose of the defendant. Rather you must consider whether the state has proven the specific unlawful purpose charged or alleged. The unlawful purpose alleged by the state may be inferred from all that was said or done and from all the surrounding circumstances of this case. However, the State need not prove that defendant accomplished this unlawful purpose of using the firearm.

The trial judge then defined the requisite state of mind.

Defendant's contention overstates our determination in State v. Mello, 297 N.J. Super. 452, 466-67 (App. Div. 1997). We did not mandate that every jury instruction for possession of a weapon for an unlawful purpose must reiterate "mere illegal possession of the weapon," is insufficient. In Mello, we applied the holding in State v. Petties, 139 N.J. 310 (1995), and specifically concluded:

The trial court's references to the State's contention that defendant brandished the firearm in order to terrorize, threaten or coerce the victims constituted a sufficient description of the prescribed purpose required for a conviction. The trial court "relate[d] the specific unlawful purpose charged to the facts of the case," [] Petties, [supra,] 139 N.J. at 321, and "mold[ed] the instruction in a manner that explain[ed] the law to the jury in the context of the material facts." State v. Concepcion, 111 N.J. 373, 379 (1988). We find no error capable of producing an unjust result. R. 2:10-2.

 
[Mello, supra, 297 N.J. Super. at 466-67.]

Our review of the trial court's instruction satisfies us no reversible error occurred. From this charge, the jury was informed of the unlawful purpose the accused allegedly harbored in possessing the firearm. Petties, supra, 139 N.J. at 320. The trial judge carefully guided the jury to avoid considering its own notions of the unlawfulness of the defendant's purpose in possessing the firearm. Ibid.

Finally, defendant argues the evidence cannot sustain a verdict for possession of a weapon with an unlawful purpose because the State failed to prove the substantive offenses of attempted murder, aggravated assault and terroristic threats. Defendant's argument is without sufficient merit to warrant discussion in a written opinion. Rule 2:11-3 (e)(2). We add the following:

A charge of possession of a "firearm with purpose to use it unlawfully against the person or property of another" under N.J.S.A. 2C:39-4(a) requires proof of four elements . . . . (1) the object possessed was a "firearm" within the meaning of N.J.S.A. 2C:39-1(f); (2) the firearm was possessed by defendant as defined in N.J.S.A. 2C:2-1(c); (3) the defendant's purpose in possessing the firearm was to use it against the person or property of another; and (4) the defendant intended to use the firearm in a manner that was unlawful.

[State v. Diaz, 144 N.J. 628, 635 (1996).]

"[A] conviction based on the use of the weapon is not a required precondition to a conviction for the possessory offense." Id. at 636; Petties, supra, 139 N.J. at 316. "[I]n many cases the unlawful purpose or subjective intent of a defendant required to be established by the State may be inferred from the totality of the circumstances, including the use of the weapon[.]" Ibid.

The totality of the circumstances belie defendant's contention. The weapon had been discharged in the kitchen, which contained evidence of a struggle. Margaret's physical condition, as observed by Officer Cherney, and the events presented in the 911 tape evince defendant's intent to use the gun unlawfully against Margaret. We conclude the State's direct and circumstantial evidence, giving benefit of all favorable inferences to the State, was sufficient to sustain a finding of defendant's guilt beyond a reasonable doubt. State v. Reyes, 50 N.J. 454, 459 (1967). Accordingly, the jury's verdict must not be disturbed.

Affirmed.

 
 
 

The State's brief informs us that prior to trial, Margaret moved to New York State and evaded attempts to compel her appearance.

(continued)

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A-5758-05T4

January 13, 2009