STATE OF NEW JERSEY v. ROY VAN WYK

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6482-05T46482-05T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ROY VAN WYK,

Defendant-Appellant.

________________________________________________________

 

Submitted October 14, 2009 - Decided

Before Judges Wefing, Messano and LeWinn.

On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 03-04-0876.

Yvonne Smith Segars, Public Defender, attorney for appellant (Diane Uniman, Designated Counsel, on the brief).

John L. Molinelli, Bergen County Prosecutor, attorney for respondent (Annmarie Cozzi, Assistant Prosecutor, on the brief).

PER CURIAM

Following a jury trial, defendant Roy Van Wyk was convicted of fourth-degree harassment, N.J.S.A. 2C:33-4(e), and fourth-degree contempt, N.J.S.A. 2C:29-9(a). He was sentenced to two concurrent one-year terms of imprisonment, both to run consecutively to any "period of incarceration imposed as a sentence in this or any other jurisdiction. Defendant raises the following issues on appeal:

POINT ONE

THE TRIAL JUDGE ABUSED HIS DISCRETION IN DENYING THE DEFENDANT'S APPLICATION FOR AN ORDER EXCLUDING EVIDENCE AT TRIAL OF SIMILAR ACTS UNDER N.J.R.E. 404(b).

POINT TWO

THE PROSECUTOR'S MISCONDUCT CLEARLY EXCEEDED THE BOUNDS OF PROPRIETY AND REQUIRES A REVERSAL OF DEFENDANT'S CONVICTION. (Raised in part)

POINT THREE

THE COURT SHOULD HAVE GRANTED DEFENDANT A NEW TRIAL AS THE JURY VERDICT WAS AGAINST THE WEIGHT OF THE EVIDENCE.

POINT FOUR

THE COURT ERRED IN NOT GRANTING DEFENDANT'S MOTION FOR A MISTRIAL FOR WITNESSES':

A. REFERENCING INCARCERATION FOR SHOTGUN.

B. CHARGE WITNESS['S] REFERENCE TO BEING AFRAID OF DEFENDANT.

POINT FIVE

DEFENDANT'S SENTENCE WAS EXCESSIVE.

We have considered these arguments in light of the record and applicable legal standards. We affirm.

I.

This indictment charged defendant with conduct that occurred between October 19, 2002, and November 3, 2002. Count one alleged that defendant purposely harassed Thomas Conrad and/or Donna Conrad "while . . . serving a term of imprisonment as the result of a conviction for an indictable offense . . . ." N.J.S.A. 2C:33-4(e). Count two alleged that during the same dates, defendant "did purposely or knowingly disobey a judicial order . . . specifically by having contact directly or indirectly with" the Conrads. N.J.S.A. 2C:29-9(a). It was the State's theory that defendant caused a fellow inmate, Kenton Rodney, to unwittingly contact the Conrads, thus making defendant liable for Rodney's conduct. See N.J.S.A. 2C:2-6(b)(1) (making "[a] person . . . legally accountable for the conduct of another person when . . . he causes an innocent or irresponsible person to engage in such conduct").

At trial, the parties entered into a stipulation that was read and submitted to the jury in writing. The jury was advised that on October 18, 2002, defendant pled guilty to certain indictable charges contained in Bergen County Indictment No. 820-00, and was sentenced to a period of imprisonment as a result; that from that date through and beyond November 3, 2002, defendant "was serving this term of imprisonment[;]" that defendant, as part of his sentence and with the advice of his attorney, consented to the entry of an order prohibiting him from having any further contact with the Conrads; that defendant was in the Bergen County Jail on that indictment from July 13, 2001 to October 17, 2002; and that on October 30, 2002, defendant was discharged from the Passaic County jail and "transferred to prison."

Testimony revealed that defendant had been the Conrads' next-door neighbor in Ramsey. On October 31, 2002, the Conrads "received a message on [their] answering machine" at home indicating that someone had attempted to make a collect call to their residence from the Passaic County jail. On November 3, Thomas Conrad answered his home phone and spoke to an operator who asked if he would accept a collect call from the Passaic County Jail. Conrad did not accept; the same thing occurred two hours later. This time Conrad accepted the call and asked the man on the other end of the line why he was calling.

This person identified himself as "Kenton," and told Conrad that defendant had told him to call the number because someone at the location was interested in being a "pen pal." After telling "Kenton" that no one was interested and hanging up, Conrad called the police. Their investigation revealed that defendant had been housed at the Passaic County facility between October 17 and October 30; that Kenton Rodney was an inmate at the facility; and that he and defendant were housed in the same section of the jail from October 25 to October 30, 2002.

Kenton Rodney testified at trial that he was defendant's cellmate and that defendant had given him a list of individuals who wanted to be pen pals to the inmates. Rodney recounted the call he had made to Conrad, and testified that afterwards, he realized defendant might "be setting [him] up . . . ." He made no other phone calls to people on the list.

The balance of the State's case concerned defendant's prior conduct that was not the subject of the indictment. Robert Miller, an inmate at the Bergen County jail from December 1999 to June 15, 2000, testified that he met defendant there in January 2000. Miller overheard defendant providing other inmates with phone numbers, telling them that they belonged to people who might be willing to post bail. Miller took some of the numbers and called them, but none of his collect calls was accepted. Miller claimed defendant told the inmates to "just harass" anyone who answered the calls.

Defendant gave Miller a list containing ten to twenty names and phone numbers. He told Miller to leave it on a table in the jail's common area. When Miller asked defendant why he was "calling these people," defendant responded, "Just to make their lives miserable because, they put [me] []here . . . ."

When Miller was moved from the facility, defendant mailed him several letters containing lists of the names and addresses of women who defendant claimed liked to write to inmates. Donna Conrad's name and address was on one of the lists. Miller turned the letters over to detectives, and they were admitted into evidence at the trial.

In November 2000, Thomas Conrad testified that he received two collect calls from the Bergen County jail and reported the incidents to the police because the only person he knew being housed at the jail was defendant. Donna Conrad testified that also in November 2000, she received a letter from an inmate named Sam Walker housed in the Bergen County jail. She knew no one by that name, and the only person she knew that was in the jail was defendant. In the letter, Walker claimed to have gotten her name from a list at the jail. In July 2001, she received another collect call from the jail from someone named "Andrew." She reported that call to the police.

Defendant did not testify. In large part, defense counsel's summation was an attack upon the credibility of Rodney who had an extensive criminal record. The State contended that defendant intended to harass the Conrads by having Rodney call them, and that defendant sought revenge because the couple was responsible, in part, for lodging the earlier criminal charges against him.

II.

The State moved pre-trial to admit evidence regarding defendant's 2002 conviction; Miller's testimony; and testimony regarding the attempts made by others, allegedly at defendant's behest, to contact the Conrads from jail during 2000 and 2001 while the charges contained in Indictment No. 820-00 were pending against him. Defendant objected, and the judge conducted a N.J.R.E. 104 hearing, taking testimony from Miller and the Conrads on the issue.

After conducting an analysis pursuant to State v. Cofield, 127 N.J. 328, 338 (1992), the judge granted the State's motion in part, and denied it in part. He concluded that while the State could call Miller and introduce the lists defendant provided to him, the State could not introduce evidence that the lists included the names of other victims that were also the subject of Indictment No. 820-00. He determined that the Conrads could testify as to the other phone calls and the letter they had received prior to Rodney's phone call.

Defendant now argues that the judge abused his discretion in admitting this testimony. He claims the totality of the evidence resulted in "overwhelming prejudice." We disagree.

N.J.R.E. 404(b) provides that "evidence of other crimes, wrongs, or acts is not admissible to prove the disposition of a person in order to show that such person acted in conformity therewith." However, "[s]uch evidence may be admitted for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident when such matters are relevant to a material issue in dispute." Ibid. In Cofield, supra, the Court adopted a four-part test to determine the admissibility of such evidence.

The Cofield test requires that:

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. Williams, 190 N.J. 114, 122 (2007) (citations omitted).]

"Further, even if relevant under N.J.R.E. 404(b), such evidence must nevertheless survive the crucible for all relevant evidence: 'relevant evidence may be excluded if its probative value is substantially outweighed by the risk of (a) undue prejudice, confusion of issues, or misleading the jury or (b) undue delay, waste of time, or needless presentation of cumulative evidence.'" State v. Lykes, 192 N.J. 519, 534-35 (2007) (quoting N.J.R.E. 403). Our scope of review of a trial judge's determination as to admissibility of evidence regarding a defendant's prior bad acts is normally narrow, deferential, and limited to whether the judge mistakenly exercised his discretion. State v. Marrero, 148 N.J. 469, 483-84 (1997).

In order to minimize "the inherent prejudice in the admission of other-crimes evidence," the judge must "sanitize the evidence when appropriate" before it is presented to the jury. State v. Barden, 195 N.J. 375, 390 (2008). After the admission of such evidence, the judge should clearly instruct the jury on the prohibited and permitted uses for which it may consider the evidence. Ibid; Cofield, supra, 127 N.J. at 341; see also State v. Angoy, 329 N.J. Super. 79, 89-90 (App. Div.) (recommending that limiting instructions be provided when evidence is admitted, and repeated at the conclusion of the case), certif. denied, 165 N.J. 138 (2000).

First, any evidence regarding defendant's 2002 conviction was kept to a minimum by use of the stipulation. The jury was simply told that defendant had been convicted of a crime and when the conviction occurred; that as a result, an order was entered prohibiting him from contacting the Conrads; and when defendant was detained at the various facilities.

All of this was clearly relevant because in order to secure a conviction under N.J.S.A. 2C:33-4(e), the State needed to prove that defendant's harassing conduct occurred while "he was serving a term of imprisonment . . . as the result of a conviction of any indictable offense under the laws of this State . . . ." In order to prove a violation of N.J.S.A. 2C:29-9(a), the State had to show that defendant "purposely or knowingly disobey[ed] a judicial order . . . ." In our opinion, the stipulation essentially "sanitized" this information and provided the jury with no further information than was necessary.

As to the testimony from the Conrads regarding other inmates' attempts to contact them from jail, and Miller's testimony regarding defendant's supplying lists of names and addresses to his fellow inmates, one of which included the name and address of Donna Conrad, we conclude that the evidence was properly admitted.

It was the State's theory that defendant caused Rodney to contact the Conrads with the purpose to harass them, thus making defendant liable for Rodney's conduct. Seen in this light, Miller's testimony was clearly relevant to prove defendant's intent, preparation, and plan. It demonstrated that at some point earlier in time, defendant provided information to other inmates, upon whom he relied to actually make contact with people outside the facility. One of the individuals on the lists was Donna Conrad. Miller's testimony that defendant told him the purpose in making these contacts was to "harass" those people was clearly relevant to defendant's motive and intent in providing Rodney with the information and suggestion to call the Conrads. The same is true regarding the testimony of the Conrads as to events in 2000 and 2001. Prong one of the Cofield test was met.

The conduct that Miller attributed to defendant was similar to that described by Rodney and for which defendant was being tried. Although defendant claims it was remote in time, some two years prior to the harassing conduct alleged in the indictment, we do not conclude that the passage of such a period of time transformed highly relevant evidence into inadmissible evidence, particularly since phone calls made to the Conrads were alleged to have occurred in the interim. See State v. Castagna, 400 N.J. Super. 164, 179 (App. Div. 2008) (concluding that the second Cofield prong was met when conduct occurred in a rather continuous course over a year).

As to defendant's argument that the Conrads' testimony was about conduct so dissimilar to the events charged in the indictment as to be inadmissible under Cofield's second prong, we simply note that the Supreme Court has recently said, "[t]he requirement set forth as prong two of Cofield . . . need not receive universal application . . . ." Williams, supra, 190 N.J. at 131. Indeed, the Court has recognized that a "wider range" of prior bad act evidence is admissible to prove motive. State v. Covell, 157 N.J. 554, 567 (1999) (citing State v. Rogers, 19 N.J. 218, 228 (1955)).

The judge determined all the evidence met the "clear and convincing" standard required by Cofield, and we see no basis to disturb that decision. See State v. Locurto, 157 N.J. 463, 471-72 (1999) (requiring us to defer to the trial judge's determination of credibility).

As to the balancing required by Cofield's fourth prong, all the evidence was highly probative of critical elements of the State's burden of proof. We do not see how the State could have introduced any less inflammatory evidence in order to meet that burden. See Barden, supra, 195 N.J. at 392. While the evidence was undoubtedly prejudicial, the probative value outweighed that prejudice, particularly in light of the judge's repeated instructions to the jury regarding the permissible uses of the evidence. In short, the trial judge did not mistakenly exercise his discretion in admitting this evidence.

Defendant argues that the prosecutor, "by repeatedly scolding [defense counsel] in front of the jury and belittling her," engaged in egregious misconduct requiring reversal. While we acknowledge the prosecutor's conduct was inappropriate, it does not merit reversal.

"[P]rosecutors occupy a unique position in the criminal justice system and . . . their primary duty is not to obtain convictions[,] but to see that justice is done." State v. Zola, 112 N.J. 384, 426 (1988) (citing State v. Farrell, 61 N.J. 99, 104 (1972)), cert. denied, 489 U.S. 1022, 109 S. Ct. 1146, 103 L. Ed. 2d 205 (1989); State v. Ramseur, 106 N.J. 123, 320 (1987). "It is clearly improper for a prosecutor 'to demean the role of defense counsel or cast aspersions upon a lawyer's motives.'" State v. Setzer, 268 N.J. Super. 553, 565 (App. Div. 1993) (quoting State v. Darrian, 255 N.J. Super. 435, 457 (App. Div.), certif. denied, 130 N.J. 13 (1992)), certif. denied, 135 N.J. 468 (1994).

However, "[a] finding of prosecutorial misconduct does not end a reviewing court's inquiry because, in order to justify reversal, the misconduct must have been 'so egregious that it deprived the defendant of a fair trial.'" State v. Smith, 167 N.J. 158, 181 (2001) (quoting State v. Frost, 158 N.J. 76, 83 (1999)); State v. DiFrisco, 137 N.J. 434, 474 (1994), cert. denied, 516 U.S. 1129, 116 S. Ct. 949, 133 L. Ed. 2d 873 (1996); Ramseur, supra, 106 N.J. at 322. The prosecutor's conduct must constitute a clear infraction and "substantially prejudice the defendant's fundamental right to have a jury fairly evaluate the merits of his [or her] defense" in order to warrant reversal. State v. Roach, 146 N.J. 208, 219, cert. denied, 519 U.S. 1021, 117 S. Ct. 540, 136 L. Ed. 2d 424 (1996) (quotations omitted).

Here, the prosecutor frequently interrupted defense counsel as she cross-examined the State's witnesses. In making his objections, he very often suggested that defense counsel did not know how to phrase a question. Despite the judge's best efforts to respond to the objections, frequently ruling in defendant's favor, the conduct continued. During defense counsel's summation, the prosecutor interrupted with an objection, telling the judge, and jury, "[Defense counsel] has no[] facts, no facts at all." The judge overruled the objection. In short, the prosecutor's conduct was entirely inappropriate and should not be condoned.

However, we cannot conclude it denied defendant a fair trial. Despite the many objections, the judge's rulings made it clear that defense counsel was not doing anything inappropriate. In the end, the witnesses were thoroughly cross-examined before the jury. In his final instructions, the judge told the jury that the comments of counsel were not evidence in the case. In sum, "[w]hen all of the offending conduct is considered against the strength of the State's evidence, we cannot conclude that the prosecutor's tactics deprived defendant of a verdict that fairly reflected the evidence." State v. Roman, 382 N.J. Super. 44, 61 (App. Div. 2005), certif. granted, 188 N.J. 219 (2006), certif. dismissed, 189 N.J. 420 (2007). We find no basis for reversal.

Defendant argues for the first time on appeal that the verdict was against the weight of the evidence. "[T]he issue of whether a jury verdict was against the weight of the evidence shall not be cognizable on appeal unless a motion for a new trial on that ground was made in the trial court." R. 2:10-1. No motion was made before the trial court. Even if the argument is not procedurally-barred, it lacks sufficient merit to warrant any discussion. See R. 2:11-3(e)(2).

Defendant contends that his motions for a mistrial should have been granted. The issue arose in the following context.

During his testimony, Rodney told the jury that he was "locked up" because his friend had a "shotgun." Defendant told Rodney that he, too, had a "shotgun charge," because "he went up and visited his girlfriend and the feds locked him up and harassed [him], and he got fifteen years." Defense counsel immediately objected. Defendant himself asked the judge for a mistrial, something defense counsel then echoed. The judge denied the request and gave a curative instruction telling the jurors to "totally disregard this evidence absolutely."

During direct examination of Donna Conrad, the prosecutor asked if she had discussed the Rodney phone call with her husband, and how she felt at the time. She responded,

A. We were deciding whether to report it to the police, because we had gotten letters, we had gotten phone calls, and again I was very scared. I didn't want to do anything more that would anger someone that would continue this, but . . . after my husband and I discussed it, he said that maybe this would put a stop to it, we just can't keep being afraid.

Q. And when you said . . . this would anger someone . . ., who were you talking about?

A. I am very afraid of [defendant] and I don't want to anger him.

Defense counsel objected, and defendant himself told the judge, "I think it's a mistrial. It's prejudicial." The judge immediately sustained the objection, but defendant continued, in front of the jury, "It's inflaming the jury against me."

The prosecutor asked for a sidebar and explained that the testimony was relevant as to whether Rodney's "phone call seriously annoyed, alarmed, or caused alarm [to] these people." The judge then reversed his ruling and told the jury that it could consider Conrad's answer. There was no further testimony on the issue.

"The standard for granting a mistrial is the same as that for granting a new trial motion, namely whether or not the error is such that manifest injustice would result from continuance of the trial and submission of the case to the jury." Pressler, N.J. Court Rules, comment 5.1 on R. 3:20-1 (2010); State v. Hightower, 146 N.J. 239, 266 (1996). We review the decision on the motion, as well as whether a cautionary instruction was necessary, under an abuse of discretion standard. Ibid. In either case, the decision "is one that is peculiarly within the competence of the trial judge, who has the feel of the case and is best equipped to gauge the effect of a prejudicial comment on the jury in the overall setting." State v. Winter, 96 N.J 640, 647 (1984).

We find no mistaken abuse of the judge's discretion in deciding to deny the mistrial motions. The judge clearly instructed the jury immediately after Rodney's offending "shotgun" testimony. Defendant argues that the instruction was insufficient, and it referenced other "bad act" evidence which was admissible. However, we believe it was clear to the jury that they could not consider Rodney's statement at all.

As to Conrad's testimony, we agree with the State that the evidence was admissible to demonstrate the reason why a "crank" phone call from someone at the jail whom the Conrads did not know nevertheless took on alarming overtones. There was no error in denying the mistrial motions.

Lastly, defendant argues that his sentence was excessive. Specifically, defendant contends the judge failed to consider his mental health issues in imposing the sentence. Furthermore, since defendant is presently serving a federal sentence until at least 2016, and his sentence on Indictment No. 820-00 is to run consecutive to that, he contends it was a mistaken exercise of judicial discretion to impose a consecutive sentence in this case.

The judge took note of defendant's "psychiatric problems," and stated explicitly that he was considering them in imposing a sentence that was less than the maximum term of eighteen months on each charge. As to the consecutive nature of the sentence, it is clear that the crimes committed here were separate and apart from those for which defendant was convicted under Indictment No. 820-00, though they involved some of the same victims. A consecutive sentence was an appropriate exercise of the judge's discretion. See State v. Yarbough, 100 N.J. 627, 643-44 (1985), cert. denied, 475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed. 2d 308 (1986); see also State v. Carey, 168 N.J. 413, 423 (2001) (noting that the Yarbough factors essentially focus upon "the nature and number of offenses for which the defendant is being sentenced, whether the offenses occurred at different times or places, and whether they involve numerous or separate victims") (quotation omitted).

Our role in reviewing the trial judge's sentence is a limited one. "[A]n appellate court should not substitute its judgment for that of the lower court, and . . . a sentence imposed by a trial court is not to be upset on appeal unless it represents an abuse of the lower court's discretion." State v. Gardner, 113 N.J. 510, 516 (1989). When the judge has followed the sentencing guidelines, and his findings of aggravating and mitigating factors are supported by the record, we will only reverse if the sentence "shock[s] the judicial conscience" in light of the particular facts of the case. State v. Roth, 95 N.J. 334, 364-65 (1984).

We find no basis to reverse the sentence imposed.

 
Affirmed.

We have not been supplied with a copy of indictment 820-00, the judgment of conviction, or the no-contact order. However, it would appear that the charges contained in the indictment included illegal wiretapping and defendant's unlawful use of the Conrads' credit cards. The State advises that Indictment No. 820-00 was returned by the grand jury in April 2000, and it alleged conduct that occurred before that date.

(continued)

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A-6482-05T4

December 30, 2009