STATE OF NEW JERSEY v. JOHN E. NADZAK

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0743-08T4 0743-08T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JOHN E. NADZAK,

Defendant-Appellant.

__________________________________

 

Submitted November 12, 2009 - Decided

Before Judges Fisher, Sapp-Peterson and Espinosa.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 06-05-0663.

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

Bruce J. Kaplan, Middlesex County Prosecutor, attorney for respondent (Simon Louis Rosenbach, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant, John E. Nadzak, appeals his robbery and aggravated assault convictions and the sentence imposed arising out of an attempted robbery of his former employer and the assault of two employees during the course of the robbery. We affirm the convictions and remand to the trial court for the entry of an amended judgment merging the aggravated assault convictions and the weapons convictions with the robbery convictions.

A grand jury indicted defendant on two counts of robbery, N.J.S.A. 2C:15-1; three counts of possession of a weapon with the purpose to use it unlawfully, N.J.S.A. 2C:39-4(d); three counts of possession of a weapon, N.J.S.A. 2C:39-3(e); and two counts each of three types of aggravated assault under N.J.S.A. 2C:12-1(b)(1), N.J.S.A. 2C:12-1(b)(2), and N.J.S.A. 2C:12-1(b)(3).

The evidence presented at trial, was as follows. During the summer of 2005, defendant worked at the Quick Chek (the store) in Woodbridge but was terminated in August after being implicated in an inside theft of merchandise. On February 8, 2006, around 5:30 a.m., defendant entered the store where two employees, Robin Depuy (Depuy), the store's assistant manager, and William Voelkel (Voelkel) were on duty. Another employee, Darlene Scott (Scott), was scheduled to work the shift but called out sick and Depuy took her place. When defendant entered the store, he proceeded to strike Depuy on the head with a hammer three times. Depuy initially fell backwards and then wrestled defendant to the ground. Depuy told Voelkel to call 9-1-1 and removed a covering that defendant had taped over his face. Defendant then tried to stab Depuy with a knife that he had taped to his hand. Voelkel was able to grab the knife from defendant, injuring his hand in the process.

During the scuffle, Depuy asked defendant what he was doing, and defendant answered, "I was coming to the store to rob the place." Defendant also told Depuy that he thought Scott, an older female employee, would be working that night, and not Depuy. Defendant begged Depuy not to call the authorities and offered to "[t]ake care of your problems. You know, I have money." The entire incident was caught on the store security camera, which was admitted into evidence at trial. Defendant was arrested and a knife was found in his possession.

Depuy and Voelkel were taken to John F. Kennedy Medical Center in Edison and treated. Depuy received five staples to close the wound on his head and later lost vision in his left eye. Voelkel experienced migraine headaches, uncontrollable urination and defecation as well as vertigo.

At trial, the defense contended that defendant could not have had the specific intent necessary to commit first-degree robbery because he was intoxicated. Additionally, the defense argued defendant lacked the requisite mens rea to commit the offenses because he had been diagnosed with bipolar disorder as a teenager. In support of this theory, the defense presented expert testimony from a psychologist, Dr. Donald Franklin, who opined that defendant "appeared to be experiencing a paranoid delusion" at the time of the incident and that this delusion "impaired his ability to act in a knowing and purposeful manner." Under cross-examination, Dr. Franklin was questioned about defendant's criminal history. Through its own expert psychologist, Dr. Louis Schlesinger, the State attempted to rebut Dr. Franklin's opinions. Dr. Schlesinger expressed the opinion that defendant was a malingerer or, alternatively, exaggerating the symptoms of actual disorders. He agreed that defendant suffered from depression, was polysubstance dependent, and had a "severe personality disorder, with immature, impulsive, anti-social traits." Nonetheless, he was of the view that defendant was fully capable of planning a robbery.

The jury convicted defendant of all the remaining charges contained in the indictment. Defendant moved for a new trial on the grounds that the evidence of his prior bad acts was improperly admitted and that the verdict was against the weight of the evidence. The trial court denied the motion. At sentencing, the court merged Count Eleven (fourth-degree aggravated assault) and Count Thirteen (third-degree aggravated assault), merged Count Twelve (third-degree aggravated assault) and Count Fourteen (fourth-degree aggravated assault), and imposed two concurrent thirteen-year sentences for the robbery convictions, concurrent five-year sentences for the weapons convictions, and concurrent eight-year sentences for the aggravated assault convictions. The present appeal followed.

On appeal defendant raises the following points for our consideration:

POINT I

THE TRIAL COURT ERRED IN PERMITTING THE JURY TO HEAR SO MUCH "OTHER ACT" AND BAD CHARACTER EVIDENCE INVOLVING PRIOR ACCUSATIONS OF THEFT, DEFENDANT'S CRIMINAL HISTORY, DRUG ABUSE, AND SUGGESTED UNEMPLOYMENT AND FAILURE TO PAY BILLS.

POINT II

THE COURT'S JURY INSTRUCTIONS LIMITING THE ADMISSIBILITY OF THE OTHER CRIMES AND BAD CHARACTER EVIDENCE WERE INSUFFICIENT.

POINT III

THE TRIAL COURT ERRED IN PERMITTING THE PROSECUTION TO REFERENCE DEFENDANT'S CRIMINAL HISTORY AND "ANTI-SOCIAL PERSONALITY" DURING CROSS[-]EXAMINATION OF DEFENDANT'S EXPERT PSYCHOLOGICAL WITNESS AND IN "REBUTTAL TESTIMONY" FROM A STATE'S EXPERT. AND EVEN IF THE EVIDENCE WAS PROPERLY ALLOWED, THE COURT'S JURY INSTRUCTIONS, ONCE AGAIN, DID NOT ADVISE THE JURY OF THE LIMITED PURPOSE OF THE EVIDENCE.

POINT IV

DEFENDANT'S RIGHT TO REMAIN SILENT WAS ENCROACHED BY THE PROSECUTOR'S CROSS-EXAMINATION OF DEFENSE WITNESSES DURING TRIAL, AND THE TRIAL COURT'S JURY INSTRUCTIONS WERE INSUFFICIENT TO AMELIORATE THE HARM.

POINT V

THE STATE'S EXPERT WITNESS, DR. SCHLESINGER, EXCEEDED PERMISSIBLE EXPERT TESTIMONY BY RELAYING HIS OPINION ON THE STATUTORY LEGAL STANDARD FOR THE ROBBERY CRIME AT ISSUE.

POINT VI

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

POINT VII

DEFENDANT'S SENTENCE IS EXCESSIVE AND IMPROPER.

I.

Prior to trial, the court conducted a hearing to determine the admissibility of the prior theft defendant committed that led to his termination from Quick Chek in August 2005. The State sought the introduction of this evidence, arguing that it was evidence of motive. In support of its application to admit this evidence, the State presented testimony from Quick Chek employee Ray Torres (Torres), the security manager who investigated the matter. He examined store videos and concluded that defendant's girlfriend, also a Quick Chek employee, had selected items, ostensibly for purchase, that defendant did not scan. When confronted with the allegations, defendant initially denied the thefts, but when told that his actions had been recorded, he admitted that over a four or five-week period, he failed to scan approximately $200 worth of purchases. He offered to repay Quick Chek and was allowed to do so, but was also fired. The trial court found that the State's proofs related to the earlier incident helped to establish defendant's motive for the robbery and his knowledge of who was likely to be working at the time he planned to rob the store. The court concluded that the probative value of this evidence outweighed the prejudice to defendant in admitting the evidence. The court permitted Torres to testify at trial and allowed him to play the video depicting defendant's actions, which Torres explained to the jury.

In addition to Torres' testimony and the video of the prior theft, the court also permitted the jury to hear testimony related to defendant's history of substance abuse, his criminal record, and his indebtedness. The State urged that evidence of defendant's prior drug use was relevant to rebut the contention of defendant's expert that defendant suffered from a bipolar disorder and that on the evening of the robbery, he was experiencing a paranoid delusion that people were trying to harm him, which caused him to act aggressively towards Depuy with a hammer and knife. The State contends the evidence the jury heard about defendant's indebtedness was relevant to the issue of an additional motive for the commission of the robbery, the need for cash to purchase drugs.

Under Rule 404(b), evidence of prior bad acts is "not admissible to prove the disposition of a person in order to show that such person acted in conformity therewith," ibid., but such 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." Ibid. The admissibility of prior bad act evidence pursuant to Rule 404(b) is analyzed using the four-part test enunciated in State v. Cofield, 127 N.J. 328, 338 (1992). In order to be admissible, the evidence of prior bad acts (1) must be relevant to a material issue, (2) the other bad acts must be similar in kind and reasonably close in time to the offense charged, (3) evidence of the prior bad acts crime must be clear and convincing, and (4) the probative value of the evidence must outweigh any prejudice. Ibid. When the prior bad acts evidence is introduced to show motive, the prior bad act and the act for which the defendant is currently on trial need not be similar. State v. Collier, 316 N.J. Super. 181, 194 (App. Div. 1988).

The applicable standard of review of a trial court's evidentiary rulings is an abuse of discretion standard. State v. Castagna, 400 N.J. Super. 164, 182-83 (App. Div. 2008). Under that standard, we accord deference to the trial court "in recognition that the admissibility of extrinsic evidence of other crimes or wrongs is best determined by the trial judge[,] . . . who is in the best position to weigh the [evidence's] probative value versus potential prejudice." Ibid.

With the exception of the evidence admitted relative to defendant's indebtedness, we are satisfied the trial court did not abuse its discretion in admitting the evidence of defendant's prior bad acts.

Briefly addressing defendant's indebtedness, we are not persuaded that such evidence had any probative value. While indebtedness to a particular victim may be admitted to establish motive for the commission of an offense against that victim, State v. Rogers, 19 N.J. 218, 228-30, evidence of a defendant's indebtedness generally is inadmissible. See State v. State v. Mathis, 47 N.J. 455, 471-72 (1966), rev'd on other grounds, 403 U.S. 946, 91 S. Ct. 2277, 29 L. Ed. 2d 855 (1971). There were no facts in the record pointing to any nexus between defendant's indebtedness and the crimes committed. Hence, this evidence should not have been admitted. Although we conclude the court erred in admitting this evidence, given the overwhelming evidence of defendant's guilt, we conclude the error was harmless.

The evidence of the prior theft and defendant's indebtedness was relevant to a material issue, the defendant's motive for the robbery. Cofield, supra, 127 N.J. at 338.

The evidence of defendant's prior criminal history was relevant to rebut the opinion of defendant's expert that he lacked the requisite mental capacity to commit the offenses because of his bipolar disorder that caused him to be delusional at the time he committed the offenses, as well as because of intoxication. Ibid. The prior theft had been committed close in time, ibid., and because it was introduced as bearing on motive, there was no requirement that the prior act be similar in nature. Collier, supra, 316 N.J. Super. at 194. Additionally, the evidence of defendant's prior theft was clear and convincing. Cofield, supra, 127 N.J. 338.

Likewise, the trial court did not abuse its discretion in permitting the jury to hear evidence of defendant's prior criminal history and substance abuse history. While not ruling out that defendant may have "some bi[]polar features" and "may actually have a bipolar disorder," the State's expert testified that "a bipolar disorder is [largely] a self report." Based upon his examination of defendant, during which he learned of defendant's hospitalization following a suicide attempt, defendant's substance abuse history, which the doctor shared with the jury, defendant's reported behavior immediately after his arrests, and testing performed, Dr. Schlesinger concluded that defendant was fully capable of planning a robbery. Ibid. The probative value of this evidence far outweighed the prejudice to defendant in having his prior criminal history and substance abuse history disclosed to the jury. This evidence provided a factual basis for Dr. Schlesinger to reject Dr. Franklin's opinion that defendant lacked the requisite mens rea to have committed the offenses because of his mental disorder and intoxication.

Unquestionably, the details of the prior bad acts evidence put before the jury was extensive, and if this evidence was relevant solely to the issue of motive, we would agree that its admission would have been unduly prejudicial and "'smack[ed] of prohibited propensity evidence.'" State v. Barden, 195 N.J. 375, 392 (2008) (quoting State v. Hernandez, 170 N.J. 106, 130 (2001)). However, by claiming diminished capacity and placing his mental state in issue, evidence of prior bad acts, standing alone, is insufficient to rebut defendant's claimed lack of mental capacity. Rather, the details of the prior bad acts provide insight into defendant's mental state, the critical issue before the jury, since defendant's physical actions during the early morning of February 8, 2006 were not in dispute. Thus, the factual circumstances and issues before the jury here are distinguishable from the issues before the jury in Barden, supra, and State v. Kemp, 195 N.J. 136, 148-50 (2008), upon which defendant relies in contending the trial court exceeded the latitude afforded to it in admitting prior bad acts evidence.

Further, while the court did not provide contemporaneous limiting instructions following the testimony of each witness, defense counsel did not request a contemporaneous instruction. Therefore, we must review the court's failure to give contemporaneous limiting instructions under the plain error standard, namely, whether the failure to give a contemporaneous instruction was "clearly capable of producing an unjust result." R. 2:10-2. In considering whether there has been plain error, it should be noted that the failure to request such an instruction can be taken to mean that the defense did not consider the error to be significant in the context of the trial. State v. Macon, 57 N.J. 325, 333 (1971); State v. Wilson, 57 N.J. 39, 50-51 (1970).

In resolving this question, we consider the court's final instructions to the jury. Those instructions reflect that the trial court cautioned the jury not to use the evidence of defendant's prior acts to infer a propensity to commit crimes. The court stated that "[o]ur rules specifically exclude evidence that a defendant has committed other crimes, wrongs, or acts, when it is offered only to show[] that he has a disposition or tendency to do wrong, and, therefore, must be guilty of the charged offenses." The court went on to clarify that "you may not use this evidence to decide that the defendant has a tendency to commit crimes, or that he is a bad person. [Y]ou may not decide that[] just because the defendant has committed other crimes, wrongs, or acts, he must be guilty of the present crimes." The court further instructed the jury that it "admitted the evidence only to help you decide the specific question of motive and knowledge. You may not consider it for any other purpose, and may not find the defendant guilty now simply because the State has offered evidence[] that he has committed other crimes, wrongs, or acts."

The court's instructions made it clear that the jury was not to consider the evidence of defendant's prior bad acts as evidence of his propensity to commit a crime. These instructions properly guided the jury in its consideration of this evidence and there is no basis to disturb the jury's verdict because of the admission of the prior bad acts evidence. Further, although the instructions highlighted the prior theft, we are satisfied that reference throughout the instruction to "crimes," "wrongs," or "acts" sufficiently alerted the jury to consider this instruction with respect to references to all of the prior bad acts evidence that was presented before the jury.

Moreover, assuming the court erred in admitting any or all of the prior bad acts evidence, we do not find that the error was so egregious that it was capable of producing an unjust result. Ibid. The evidence of defendant's guilt was overwhelming. The robbery was recorded on video. Defendant was aware that Scott, an older woman, was scheduled to work at the time he committed the offenses. This is evidence that he planned to commit the robbery around whom he believed would be working at the time, clearly reflective of knowledge and purposeful conduct on his part.

II.

Defendant argues that the State's expert was improperly allowed to give a legal opinion on the ultimate issue in the case. Specifically, the expert told the jury that defendant "committed a purposeful and intentional act, with complete knowledge and awareness of what he's doing." Defendant urges that this testimony mimicked the statutory elements that the jury was required to evaluate. In response, the State argues that because Dr. Schlesinger did not expressly say that defendant was guilty, this testimony was allowable.

Dr. Schlesinger testified:

Well, I looked at, first, you have diminished capacity, which, essentially, as I understand it, is that an individual has to first have some mental disease or defect that prohibits, completely prohibits, their ability to commit a purposeful or knowing act. In this case, there is no evidence of that whatsoever.

[Defendant] committed a purposeful and intentional act, with complete knowledge and awareness of what he's doing. This was done in a very planned fashion. This was done in [a] thought[-]out manner. He tried to obscure forensic evidence. He tried to obscure his identity, because he worked there, and lived across the street. He reasoned that a woman would be working there.

. . . .

Yeah. Well, he did all that [disguised himself, expected a woman to be working]. That shows it was intentional. He did it with intention and awareness of what was going on. When he got caught, and there was a fight, he tried to negotiate his way out of that. Again, showing total awareness of what is going on. He didn't want them to call the police. That shows there is an awareness of wrongdoing, there is consciousness of guilt. And, so, all of the facts, as I understand the case, clearly show that he behaved in a purposeful and intentional way, with full knowledge and awareness. And, so, there is no evidence at all of the legal standard for diminished capacity, as I understand the standard to be.

"[E]xpert opinion is admissible if the general subject matter at issue, or its specific application, is one with which an average juror might not be sufficiently familiar, or if the trial court determines that the expert testimony would 'assist the jury in comprehending the evidence and determining issues of fact.'" State v. Berry, 140 N.J. 280, 292-93 (1995) (quoting State v. Odom, 116 N.J. 65, 70 (1989)). Although expert opinion testimony may "encompass[ ] ultimate issues to be decided by the trier of fact," id. at 297, an expert's opinion may not be "expressed in such a way as to emphasize that the expert believes the defendant is guilty of the crime charged under the statute." Odom, supra, 116 N.J. at 80.

Here, defendant's expert opined that defendant lacked the mental capacity to act purposely in committing the offenses with which he was charged. The issue before the jury was not whether the defendant committed the acts but whether, in committing the acts, he had the mental capacity to do so. Hence, the expert's opinion as to defendant's mental capacity at the time the offenses were committed was critical to the State meeting its burden of proof. While the opinion embraced the ultimate issue of the purposefulness of defendant's conduct, the opinion reflected a characterization of defendant's conduct, not the expert's opinion of defendant's guilt. State v. Papasavvas, 163 N.J. 565, 612-13 (2000).

III.

With the exception of defendant's contention that the weapons possession and aggravated assault convictions should have merged, an argument the State concedes is meritorious, the remaining arguments advanced in Points IV, VI and VII are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e).

 
The judgment of conviction is affirmed and the matter is remanded to the trial court for entry of an amended judgment merging the aggravated assault convictions and the unlawful possession of a weapon convictions with the robbery convictions.

The court, during the trial, sua sponte dismissed Counts Six, Seven and Eight, three of the six counts of the indictment related to the weapons offenses.

(continued)

(continued)

17

A-0743-08T4

 

September 3, 2010