STATE OF NEW JERSEY v. MARCO CERRONE


NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0031-08T40031-08T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MARCO CERRONE,

Defendant-Appellant.

_______________________________


Submitted November 4, 2009 - Decided

Before Judges Gilroy and Simonelli.

On appeal from the Superior Court of New Jersey, Law Division, Gloucester County, Indictment No. 07-01-0064.

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

Sean F. Dalton, Gloucester County Prosecutor, attorney for respondent (Joseph H. Enos, Jr., Assistant Prosecutor, on the brief).

PER CURIAM

A Gloucester County Grand Jury charged defendant with third-degree possession of a controlled dangerous substance (CDS) (cocaine), N.J.S.A. 2C:35-10a(1) (count one); third-degree resisting arrest, N.J.S.A. 2C:29-2 (count two); and fourth-degree obstruction of justice, N.J.S.A. 2C:29-1a. On December 14, 2007, the trial court conducted an evidentiary hearing on defendant's motions to suppress evidence and to suppress statements he had given to the police after his arrest. The court denied the motions on February 8, 2008, and the matter proceeded to trial on May 7 and 8, 2008. At the close of the State's case, defendant moved for judgment of acquittal. R. 3:18-1. The court granted the motion as to count two only. Following the dismissal of count two, the jury found defendant guilty of count three and not guilty on count one.

On July 3, 2008, the court sentenced defendant on count three to a four-year period of probation, and to 150 hours of community service. The court also imposed all appropriate fines and penalties, and dismissed the three traffic summonses at the request of the State.

On appeal, defendant argues:

POINT I.

THE TRIAL COURT ERRED IN PRECLUDING DEFENDANT FROM ACCESSING RECORDS REGARDING THE ARRESTING OFFICER.

POINT II.

THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION TO SUPPRESS THE EVIDENCE SEIZED FROM HIS CAR.

POINT III.

THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION TO SUPPRESS THE STATEMENTS HE MADE TO POLICE.

POINT IV.

THE TRIAL COURT ERRED IN RULING DEFENDANT'S PRIOR CONVICTIONS ADMISSIBLE AGAINST HIM AT TRIAL.

POINT V.

THE COMMENTS BY THE PROSECUTOR DURING SUMMATION WERE PREJUDICIAL AND DENIED DEFENDANT A FAIR TRIAL.

POINT VI.

DEFENDANT'S SENTENCE IS EXCESSIVE AND IMPROPER.

We affirm.

I.

We derive the following facts from the testimony of Patrolman Michael Shomo, the only witness who testified at trial. Early in the morning of September 17, 2007, Shomo stopped a motor vehicle operated by defendant, after observing a non-illuminated rear license plate and a large object hanging from the vehicle's rear view mirror. Shomo approached the vehicle and requested defendant to place the vehicle into park, turn off the vehicle's engine and lights, and produce his driving credentials. Although initially hesitant to follow the officer's instructions, defendant complied.

In viewing defendant's driving credentials with the assistance of his flashlight, Shomo observed what he believed was drug paraphernalia laying on the front passenger's lap and on the front floorboard, both on the passenger's and driver's side of the vehicle. Shomo instructed defendant to step out of the vehicle and not to place his hands into his pockets. Defendant stepped out of the vehicle and started walking toward its rear when he stopped, angled his body away from Shomo, and placed his right hand into his pant's pocket. Upon observing defendant's movements, Shomo instructed defendant to place his hands on his vehicle for the purpose of performing a pat down search.

As Shomo started the pat down search, defendant pushed his hip against his vehicle, preventing the officer from completing the search. After defendant removed his hands from his vehicle, Shomo instructed him to place them back on the vehicle, informing him that if he removed his hands from the vehicle again, he would be arrested for obstruction of administration of justice. When defendant removed his hands from the vehicle a second time, Shomo placed him under arrest. While attempting to handcuff defendant, defendant failed to comply with the officer's instructions. Shomo and defendant slid alongside the vehicle toward its front, where defendant fell onto the driver's seat, yelling to the passenger.

Shomo removed defendant from the vehicle and attempted to search him incident to the arrest. Because defendant continued to act in an uncooperative manner, Shomo was not successful. Shomo walked defendant toward his patrol vehicle, and as they neared the patrol vehicle, defendant suddenly threw himself onto the vehicle's front hood. As Shomo continued to walk defendant toward the rear of the patrol vehicle, defendant "just let his muscles give [way]" and fell to the ground.

When Shomo attempted to help defendant off the ground, the unidentified front seat passenger exited defendant's motor vehicle. Shomo instructed the passenger to return to the vehicle. When the passenger refused, Shomo knelt on top of defendant, un-holstered his service weapon, and pointed it toward the passenger. The passenger started to get back into defendant's vehicle, but then fled the scene. Once the passenger left, Shomo assisted defendant off the ground, and placed him into the rear of the patrol vehicle.

A short time later, a second police officer arrived. The two officers attempted to remove defendant from the rear of the patrol vehicle to search him. On defendant's failure to comply with the officers' requests, Shomo sprayed defendant with a burst of Capstun and shut the vehicle's doors. When a third police officer arrived at the scene, the second police officer started a K-9 search for the passenger.

Shomo and the third officer again attempted to remove defendant from the patrol vehicle to search him. As Shomo opened the passenger door, he observed "four clear orange plastic baggies" lying on the rear floorboard of the vehicle. Although Shomo could not explain how defendant accomplished it, he testified that defendant had removed his pants and shoes. On completing the search and securing defendant in the rear of his patrol vehicle, Shomo transported defendant to police headquarters. While processing defendant, and before Shomo gave defendant his Miranda warnings, defendant blurted out that "I go nuts around the police." Shomo asked him why, and defendant responded, "because my old lady tried to stick it to me." Shomo acknowledged that defendant never threatened him with physical violence, but only acted in an uncooperative manner the entire time of the motor vehicle stop.

We have considered the arguments raised in Points II, III, V and VI of defendant's brief, and conclude that none of those arguments are of sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). Accordingly, we turn to defendant's remaining arguments.

II.

Defendant argues in Point I of his brief that the trial court erroneously denied his pre-trial discovery request seeking police department records regarding Shomo's arrest history and incident reports where the officer may have previously filed resisting arrest or obstruction of administration of justice charges, or issued traffic summonses for violations of N.J.S.A. 39:3-66 or 39:3-74, against or to other third parties. Defendant contends that he sought the information to support his defense "that it was Officer Shomo who'd initiated the hostilities with defendant and then subsequently blamed defendant for the situation that developed - molding the facts against defendant to support the State's charges at trial." Defendant asserts that the court's ruling denying him access to the information, "violated his constitutional rights to impeach the State's version of events, confront the witnesses against him, and present a complete defense to the State's charges." We disagree.

On review, we accord deference to a trial court's evidentiary ruling. State v. R.E.B., 385 N.J. Super. 72, 82 (App. Div. 2006). Therefore, we will not reverse a trial court's evidentiary determination "unless the court not only abused its discretion[,] but was also clearly wrong." Ibid. Simply stated, "an appellate court should not substitute its own judgment for that of the trial court, unless 'the trial court's ruling was so wide of the mark that a manifest denial of justice resulted.'" State v. Brown, 170 N.J. 138, 147 (2001) (quoting State v. Marrero, 148 N.J. 469, 484 (1997)).

A defendant's right to confront witnesses is guaranteed by both Federal and New Jersey Constitutions. State v. Budis, 125 N.J. 519, 530 (1991) (citing U.S. Const. amend. VI; N.J. Const. art. 1, 10). "The right to cross-examine is an essential element of that right." State v. Harvey, 151 N.J. 117, 188 (1997), cert. denied, 528 U.S. 1085, 120 S. Ct. 811, 145 L. Ed.2d 683 (2000). This right of confrontation affords a defendant the opportunity to question the State's witnesses, protects against improper restrictions on the questions asked during cross-examination, and affords the accused the right to elicit favorable testimony on cross-examination. Budis, supra, 125 N.J. at 530-31. "Cross-examination is the principal means by which a witness' credibility is tested." State v. Harris, 316 N.J. Super. 384, 397 (App. Div. 1998). "A [witness'] credibility may be attacked by means of cross-examination directed toward revealing possible biases, prejudices, or ulterior motives of the witness as they may relate to issues in the case at bar." Ibid.

Nonetheless, the right to confront witnesses "does not require disclosure of any and all information that might be useful in contradicting unfavorable testimony." Ibid. A defendant is "not entitled to turn the discovery process into a fishing expedition." State v. Broom-Smith, 406 N.J. Super. 228, 239 (App. Div. 2009), aff'd, 201 N.J. 229 (2010). Nor should a defendant "'transform the discovery process into an unfocused, haphazard search for evidence.'" State v. Gilchrist, 381 N.J. Super. 138, 146 (App. Div. 2005) (quoting State v. D.R.H., 127 N.J. 249, 256 (1992)).

"The determination of whether police personnel records should be disclosed involves a balancing between the public interest in maintaining the confidentiality of police personnel records and a defendant's guarantee of cross-examination under the Confrontation Clause." Harris, supra, 316 N.J. Super. at 397-98. In furtherance of that balancing test, we held that where a defendant seeks to review a police officer's personnel file the defendant "must advance 'some factual predicate which would make it reasonably likely that the file will bear such fruit and that the quest for its contents is not merely a desperate grasping at a straw.'" Id. at 398 (quoting State v. Kaszubinski, 177 N.J. Super. 136, 141 (Law Div. 1980)). However, it's not required that the defendant first establish that the personnel file "actually contains relevant information." Ibid. On establishing a right to inspect the police officer's personnel file, "[t]he disclosure . . . should be made to both the defense and the State in chambers and on the record." Id. at 387.

Here, on an unspecified date prior to December 14, 2007, when the court conducted an evidentiary hearing on defendant's motions to suppress evidence and to suppress defendant's statements, defendant filed a motion seeking an order compelling the State to turn over Shomo's personnel file. At the December 14, 2007 suppression hearing, Shomo testified in accordance with his trial testimony. Although defendant testified at the suppression hearing, he did not testify to events that occurred at the motor vehicle stop. Rather, he confined his testimony to the ownership of the motor vehicle he was operating on the night of the incident, and to the fact that the vehicle subsequently passed inspection without any repairs being made to the rear license plate lights.

On December 27, 2007, defendant served a subpoena duces tecum on the Westville Borough's Chief of Police seeking production of the following documents:

1. A copy of the Computer Assisted Dispatch ("CAD") report(s) and/or radio log(s) under Westville Police Department Case #200608785 involving Police Officer Michael Shomo (#2110), Police Officer Brian Ewe and any other responding Westville Borough police officers;

2. For the front and back of all traffic summonses issued by Officer Shomo for violations of N.J.S.A. 39:3-66 and/or N.J.S.A. 39:3-74 and any investigation reports associated with said summonses since he became employed as a Westville Borough police officer approximately four (4) years ago through the present date;

3. A list of all individuals (including name, address and race) who have been charged in the Westville Borough Municipal Court or Gloucester County Superior Court by Officer Shomo with resisting arrest (N.J.S.A. 2C:29-1) and/or obstruction of justice (N.J.S.A. 2C:29-2) wherein Officer Shomo claimed to be the victim of such conduct since he became employed as a Westville Borough police officer approximately (4) four years ago through the present date;

4. For any standard Operating Procedures ("SOPs") in effect on or about September 17, 2006 concerning when and under what circumstances an officer can order a driver out of his/her motor vehicle;

5. For any SOP in effect on or about September 17, 2006 concerning when and under what circumstances an officer can use a chemical agent (such as "cap stun") on a citizen;

6. The quarterly reviews of Officer Shomo; and

7. Any and all documents concerning any internal affairs investigations of Officer Shomo (including any and all allegations of excessive force against him).

On the same day, defendant also served a subpoena duces tecum on the Westville Borough Municipal Court Administrator seeking the same items referenced in paragraphs 2 and 3 above, together with copies of "any private citizen complaints filed against Officer Shomo since he became employed as a Westville Borough police officer approximately four (4) years ago through the present date."

On January 8, 2008, the State filed a motion seeking to quash the two subpoenas. On February 4, 2008, the court issued a written decision addressing defendant's motion seeking to inspect Shomo's personnel file and the State's motion to quash the subpoenas. Acknowledging that defendant asserted self-defense to the charge of resisting arrest, the court determined that defendant had shown a sufficient factual predicate to require Shomo's personnel file be inspected by the court in camera, after which the court would advise what documents, if any, should be disclosed to defendant. As to the two subpoenas, the court directed that the State produce documents referenced in paragraphs 1, 4, and 5 in the list attached to the subpoena served on the Chief of Police. The court granted the State's motion to quash the requests regarding documents contained in paragraphs 3, 6, and 7, "as those requests will be considered when the [c]ourt reviews the personnel record of the [o]fficer." The court also quashed the remaining document requests, determining that "the relevance of the evidence to this case [was] so attenuated that its probative value is slight."

Following the court's decision, the State presented Shomo's personnel file to the court and turned over certain other documents to defendant as directed by the court. On February 8, 2008, the court, after reviewing the personnel file with counsel in chambers, but not on the record, determined that the file did not contain any information relevant to the charges pending against defendant. It is against this record that defendant contends the trial court improperly granted the State's motion quashing the subpoenas as to certain documents he sought to obtain from the Westville Borough Chief of Police and Municipal Court Administrator.

Because we believe defendant may have improperly sought to obtain pre-trial discovery by way of the subpoenas duces tecum, rather than by filing a motion seeking an order compelling the production of the documents, we treat the issue presented as if it had first come before the trial court on motion of defendant. In addressing defendant's argument, we acknowledge that some of the documents defendant sought by the subpoenas may be found outside of Shomo's personnel file, for example, copies of any complaints in the municipal court that may have been filed by or against Shomo. In such a case, defendant may have been entitled to receive copies of those complaints pursuant to the Open Public Records Act, N.J.S.A. 47:1A-1 to -13. See Pressler, Current N.J. Court Rules, comment 7 on R. 1:9-2 (2010) ("Where public records are sought to be inspected for purposes of discovery rather than for introduction at trial, the proper procedural technique is an action pursuant to [The Open Public Records Act,] rather than the issuance of a subpoena duces tecum under this Rule").

However, when a defendant seeks to compel the State to produce documents, which are of the same type generally found in a police officer's personnel file, we conclude that the court should view the request through the lens of Harris, requiring the defendant to proffer a factual predicate that would make it "reasonably likely that the [documents] will bear such fruit and that the quest for [their] contents is not merely a desperate grasping at a straw." 316 N.J. Super. at 398 (internal quote and citation omitted). This is not such a case.

In Harris, we directed that the State turn over the arresting officer's personnel file for an in camera review, following leave to appeal from a post-judgment of conviction motion. The defendant had presented evidence that the arresting officer had taken money from him and his friends, had planted drugs on them, and had harassed them on other occasions prior to the incident leading to the arrest, Harris, supra, 316 N.J. Super. at 391; that the arresting officer was a drug user, id. at 399; that the arresting officer had been suspended from the police department, id. at 394; and a newspaper had reported that the police department was investigating the arresting officer for alleged shakedowns of other individuals. Ibid. Because we determined that the defendant had produced evidence of a factual predicate that would make it reasonably likely that information in the personnel file could affect the officer's credibility, we directed that the personnel file be turned over for an in camera review. Id. at 399.

Here, just the opposite is so. The record is devoid of any evidence that Shomo acted in an unlawful or in an inappropriate manner toward defendant or toward any other third parties. Shomo was subjected to an extensive and probing cross-examination during the suppression hearing, and yet a review of the transcript fails to disclose any improper conduct on his part during the motor vehicle stop. Defendant testified at the suppression hearing, but did not testify to any facts challenging Shomo's version of the events leading to the criminal charges. Although a criminal defendant is entitled to broad discovery, he or she "cannot transform the discovery process into an unfocused, haphazard search for evidence." D.R.H., supra, 127 N.J. at 256. Accordingly, applying our deferential standard of review of a trial court's evidentiary ruling, we find no abuse of discretion in the trial court's grant of the State's motion to quash defendant's discovery requests.

III.

Defendant argues in Point IV of his brief that the trial court erred in determining that the State could use his 1991, 1998 and 1999 criminal convictions for purpose of impeachment. Defendant asserts that the prior convictions were too remote from the trial to be probative as to his credibility. He contends the trial court failed to balance the remoteness of the convictions against the nature of the crimes underlying the convictions to assess whether the relevancy of the evidence as to his credibility outweighed any prejudice to him. Defendant asserts that the court's erroneous ruling denied him his constitutional right to testify at trial. We disagree.

N.J.R.E. 609 provides in relevant part that "[f]or the purpose of affecting the credibility of any witness, the witness' conviction of a crime shall be admitted unless excluded by the judge as remote or for other causes." The party seeking to bar the admission of prior-conviction evidence bears the "burden of proof to justify [its] exclusion." State v. Sands, 76 N.J. 127, 144 (1978). The decision whether to admit such evidence "rests within the sound discretion of the trial judge." Ibid. Accordingly, we will not disturb a trial judge's decision to admit prior-conviction evidence unless we find a clear abuse of discretion. Brown, supra, 170 N.J. at 147; State v. Hutson, 211 N.J. Super. 49, 53 (App. Div. 1986), aff'd, 107 N.J. 222 (1987).

A trial court may exclude prior-conviction evidence "when the evidence's 'probative force because of its remoteness, giving due consideration to relevant circumstances such as the nature of the crime, and intervening incarcerations and convictions, is substantially outweighed so that its admission will create undue prejudice.'" State v. Hamilton, 193 N.J. 255, 263-64 (2008) (quoting Sands, supra, 76 N.J. at 147). Thus, the key to admitting prior-conviction evidence is its remoteness. Sands, supra, 76 N.J. at 144. However,

[r]emoteness cannot ordinarily be determined by the passage of time alone. The nature of the convictions will probably be a significant factor. Serious crimes, including those involving lack of veracity, dishonesty or fraud, should be considered as having a weightier effect than, for example, a conviction of death by reckless driving. In other words, a lapse of the same time period might justify exclusion of evidence of one conviction, and not another. The trial court must balance the lapse of time and the nature of the crime to determine whether the relevance with respect to credibility outweighs the prejudicial effect to the defendant. Moreover, it is appropriate for the trial court in exercising its discretion to consider intervening convictions between the past conviction and the crime for which the defendant is being tried. When a defendant has an extensive prior criminal record, indicating that he has contempt for the bounds of behavior placed on all citizens, his burden should be a heavy one in attempting to exclude all such evidence. A jury has the right to weigh whether one who repeatedly refuses to comply with society's rules is more likely to ignore the oath requiring veracity on the witness stand than a law abiding citizen. If a person has been convicted of a series of crimes through the years, then conviction of the earliest crime, although committed many years before, as well as intervening convictions, should be admissible.

[Id. at 144-45.]

Here, defendant was convicted of second-degree aggravated sexual assault and of two fourth-degree offenses of criminal trespass in 1991; third-degree eluding in 1998; and fourth-degree unlawful possession of a weapon in 1999. Prior to trial, defendant sought to prohibit the State from using these convictions to impeach his credibility should he testify at trial on the basis that the convictions were too remote. The court determined that the convictions were not so remote as to prohibit the State from using them for impeachment purposes. However, because the court was concerned about the eluding conviction being similar to two of the charges against defendant, the court ordered all convictions sanitized, directing that the State could use the convictions on cross-examination but that any reference to them was to be limited to the degree of the crime and the date of the conviction. See State v. Brunson, 132 N.J. 377, 393 (1993).

We discern no abuse of discretion by the trial court in determining that the State could use the three convictions to impeach defendant if he testified. Second-degree aggravated sexual assault is a serious offense. Defendant's criminal record from that conviction forward, which included two more indictable convictions, evidences his "contempt for the bounds of behavior placed on all citizens." Sands, supra, 76 N.J. at 145. Moreover, defendant also had an intervening municipal court conviction for disorderly conduct in January 1995. State v. Irrizary, 328 N.J. Super. 198, 204 (App. Div.) (holding that "a defendant's municipal court convictions can be considered in determining whether a defendant's prior convictions are too remote for impeachment purposes"), certif. denied, 164 N.J. 562 (2000).


Affirmed.

The arresting police officer also issued defendant three traffic summonses for failure to maintain required illuminating devices on his motor vehicle, N.J.S.A. 39:3-66; operating a motor vehicle with an obstructed view, N.J.S.A. 39:3-74; and possession of a CDS in a motor vehicle, N.J.S.A. 39:4-49.1.

Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed.2d 694 (1966).

We question the appropriateness of defendant seeking discovery via the two subpoenas duces tecum. The subpoenas directed the Chief of Police and the Municipal Court Administrator to appear, give testimony, and to "produce at the same time" the aforementioned documents. Contrary to civil procedure, "[t]here is no available deposition technique for general discovery" in criminal proceedings. Pressler, Current N.J. Court Rules, comment 1 on R. 3:13-2 (2010). Rather "depositions in criminal actions are limited to the procedures and authorizations" contained in Rule 3:13-2. Ibid.; see also Kaszubinski, supra, 177 N.J. Super. at 141 (stating that "[t]he purpose of a subpoena duces tecum is to obtain the production of documents or other items that will aid in the development of testimony at trial. It is not appropriately employed as a discovery device in criminal proceedings.").

Although unclear in defendant's brief, it appears that he is not challenging the trial court's denial of his request for the State to turn over Shomo's personnel file as the court did review the file in camera with counsel. Accordingly, we considered defendant's argument limited to the denial of the documents contained in paragraphs 2, 3, 6 and 7 of the subpoena served upon the Chief of Police and in paragraph 3 of the subpoena served upon the Municipal Court Administrator seeking copies of any private citizens' complaints that may have been filed against Shomo.

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A-0031-08T4

August 4, 2010