STATE OF NEW JERSEY v. BRANDIS PURYEAR

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2778-09T22778-09T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

BRANDIS PURYEAR,

Defendant-Appellant.

__________________________________________________

 

Argued June 8, 2010 - Decided

Before Judges Grall and Messano.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 09-09-716.

Anthony J. Iacullo argued the cause for appellant (Iacullo Martino, L.L.C., attorneys; Mr. Iacullo, of counsel and on the brief; Joshua H. Reinitz, on the brief).

Lucille M. Rosano, Special Deputy Attorney General/Assistant Prosecutor, argued the cause for respondent (Robert D. Laurino, Acting Essex County Prosecutor, attorney; Ms. Rosano, of counsel and on the brief).

PER CURIAM

Along with fellow Irvington police officer Brian Rice, defendant Brandis Puryear was indicted by the Essex County grand jury and charged with second-degree conspiracy to commit official misconduct, N.J.S.A. 2C:5-2 and 2C:30-2; second-degree official misconduct, N.J.S.A. 2C:30-2; and fourth-degree tampering with evidence, N.J.S.A. 2C:28-6(1). At trial, after the State rested, the judge granted defendant's motion for acquittal as to the official misconduct count. The jury convicted defendant of conspiracy and acquitted her of the tampering count. Defendant was sentenced to a term of three years in prison; her sentence has been stayed pending appeal. Defendant raises the following issues for our consideration:

POINT ONE

THE EVIDENCE PRESENTED AT TRIAL WAS INSUFFICIENT TO ESTABLISH THAT BRANDIS PURYEAR CONSPIRED TO COMMIT OFFICIAL MISCONDUCT

A. THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING DEFENDANT'S MOTION FOR JUDGMENT OF ACQUITTAL AND IN THE ALTERNATIVE FOR A NEW TRIAL

B. THE EVIDENCE INTRODUCED AT TRIAL WAS INSUFFICIENT TO ESTABLISH AGREEMENT

C. PURYEAR NEITHER PROMOTED NOR FACILITATED OFFICIAL MISCONDUCT

D. THE EVIDENCE WAS INSUFFICIENT TO ESTABLISH THAT THE ACTIONS CONSTITUTING THE OBJECT OF THE CONSPIRACY ACTUALLY CONSTITUTED OFFICIAL MISCONDUCT

POINT II

THE COURT'S DECISION TO PERMIT THE STATE TO ESSENTIALLY CROSS EXAMINE DENNIS GARNER WITH A STATEMENT IT HAD PREVIOUSLY OFFERED AS UNTRUTHFUL WAS PREJUDICIAL ERROR AND MERITS REVERSAL

POINT III

STATEMENTS MADE BY DEFENDANT PURYEAR SHOULD HAVE BEEN ENTITLED TO USE IMMUNITY PURSUANT TO GARRITY V. NEW JERSEY

POINT IV

THE TRIAL COURT IMPROPERLY QUESTIONED A KEY WITNESS

POINT V

THE COURT'S DECISION TO VEER FROM THE AGREED UPON JURY INSTRUCTIONS AND PROVIDE AN EXAMPLE OF CIRCUMSTANTIAL EVIDENCE THAT WAS NEARLY FACTUALLY INDISTINGUISHABLE FROM THE FACTS IN THE CASE AT BAR MERITS A REMAND FOR A NEW TRIAL

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

I.

The testimony at trial revealed that at approximately 1:00 a.m. on November 17, 2009, defendant was working off-duty, but in uniform, as a security guard at a Pathmark store in Irvington. At approximately the same time, Rice entered the Pathmark in plainclothes to make a purchase and Juwann Shabazz also entered the store to use the automated teller machine. Shabazz recognized defendant from an encounter earlier in the day when she directed him and a few of his friends who were in front of a liquor store to disperse. Shabazz approached defendant to talk, and "to make sure that everything was good between" them.

As Shabazz was talking to defendant, he noticed a man at a nearby cash register, later identified as Rice, looking in his direction. Shabazz asked him, "What is the problem[?] [C]an I help you[?] . . . [W]ho are you?" Rice responded, "You don't want no problems with me." Defendant told Shabazz, "Yeah, you don't want no problems with him." Rice approached Shabazz, and "put[] his hand in [his] face" in a fist-like motion with his index finger extended. Shabazz asked him to remove his hand, and Rice replied, "If you knock my hand down from your face, then I'm going to hit you." When Shabazz removed Rice's hand, Rice punched him on "the right side of [his] face." Shabazz fell to the ground, hit his head on the concrete, and the two tussled. Defendant and others in the store eventually broke up the fight. Shabazz narrated the events as they unfolded while the jury viewed a video of the incident.

Defendant radioed a "Signal 5" for backup assistance. Testimony revealed this was a code used by the police department to report a general disturbance, such as a fight or argument. Shortly thereafter, defendant again used her radio to alert dispatch that the incident had been brought under control.

Less than five minutes after defendant's first call for assistance, Lieutenant Dwayne Mitchell arrived on the scene. He observed defendant and Rice standing outside the Pathmark. Shabazz was yelling: "He assaulted me. I'm pursuing this to the fullest. I'm pressing charges . . . . I didn't know he was a cop." Mitchell testified that he did not detect alcohol on Shabazz' breath, and Shabazz did not appear intoxicated. Mitchell asked defendants whether Shabazz was under arrest, and Rice responded, "No, it was a verbal[,]" signifying that no physical assault had occurred. Defendant did not respond, though Mitchell noted this was not unusual since Rice outranked defendant and police protocol required him to answer the question.

Mitchell interviewed Shabazz at the scene and informed him that he could file a complaint. Mitchell again approached both defendants, and noticed that Rice was nursing a bloody hand "with some tissue." After informing both officers that Shabazz intended to file a complaint, Mitchell asked them, "Are you sure nothing happened?" Rice responded, "I'm the senior officer on the scene and I'm saying it's a verbal. It is what it is and he got to do what he got to do."

Shabazz initially went to the police station to make a report but was transported to the hospital before he could do so. Approximately thirty-five to forty-five minutes after he first responded on the scene, Mitchell returned to the Pathmark. Outside Rice's presence, he told defendant that Shabazz was filing a complaint, explained that an assault could occur without anyone being struck, and asked defendant whether an assault had occurred; she told Mitchell no assault took place. Mitchell asked defendant again, "Are you sure nothing happened? She said, I called it back a verbal; that's how I called it back." Shabazz filed a complaint with Internal Affairs the next morning.

Dennis Garner, a security officer employed by Pathmark, monitored the store surveillance cameras on November 17. The security office contained a daily tape recorder that permitted the operator to randomly view various parts of the store. Four additional stationery cameras recorded specific areas of the store on VHS videotape. Through the cameras, Garner saw Rice make a purchase and also saw defendant having a "verbal altercation" with Shabazz. When Garner saw defendant signal Shabazz to step back with her hand, he left the security office and went into the store to monitor the situation more closely.

He described the conversation between defendant and Shabazz as "kind of heated[,] [but] [i]t was nothing that she couldn't handle at the time." He noticed Rice and defendant conversing, and then saw Rice talking to Shabazz. At first, the conversation was inaudible, but then Garner heard Rice say, "Here it comes, here it comes[,]" and punch Shabazz in the face. A brief struggle ensued before defendant and others separated the two men.

After other officers arrived on the scene, Garner returned to the security booth to view the tapes and write an incident report. Both defendants entered the booth. Garner said "it's normal for them to come in to review a tape if the person is on duty." Garner knew Rice because Rice was once employed as an off-duty Pathmark security guard and Garner did not think it was unusual for Rice to also come to the booth. Garner was able to isolate the videotape from one of the stationary cameras that captured the events. Both defendants watched the tape with him.

Rice then asked, "what happens if the tapes would disappear[?]" Garner did not answer. Garner wrapped all the tapes in an elastic band and left them on his desk. He left the room to respond to a call from the store's night manager. On his way out, he observed Rice put the tapes under his jacket. Defendant was already out of the office and walking ahead of Garner.

At this point the prosecutor sought a hearing outside the presence of the jury pursuant to State v. Gross, 216 N.J. Super. 98 (App. Div. 1987), aff'd, 121 N.J. 1 (1990). Arguing that Garner's trial testimony was inconsistent with his formal statement given to Internal Affairs, and his grand jury testimony, the prosecutor was permitted to confront Garner with those statements before the jury.

It suffices to say that in his statement to Internal Affairs, Garner responded affirmatively when asked, "Did you leave . . . Rice and . . . [defendant] in the office with the videotapes?" In the grand jury, Garner testified that when he walked out of the security office, he "look[ed] over [his] shoulder and . . . maybe a couple of seconds later [defendant] came out behind [him] and [he] went to find th[e] manager."

Detective Sergeant Amanda Koontz of Internal Affairs, who investigated Shabazz' complaint, testified during the Gross hearing and before the jury. Koontz went to Pathmark to secure any videotapes from the night of the incident. None existed, though there were tapes present for days both before and after that date. She then contacted the security manager at Pathmark headquarters in Carteret. Koontz was able to secure a "digital tape" that recorded events live and retained them at corporate headquarters on compact discs. That video was the version of events played for the jury.

The State rested after Koontz' testimony. The judge granted defendant's motion for acquittal only as to the official misconduct count. Defendant elected not to testify, but Rice did.

He overheard Shabazz and defendant having what appeared to be a cordial conversation. Then, Shabazz directed his attention towards Rice, saying "what [are you] looking at[?]" and telling him to "mind [his] business . . . ." Shabazz appeared to be intoxicated, his speech was slurred, and Rice detected alcohol on his breath. Rice pointed his finger at Shabazz, and motioned for him to continue his conversation with defendant. Shabazz responded, "Don't point at me and don't put your hand in my face." When Shabazz reached over as if to touch Rice's hand, defendant stepped in between them. Shabazz stepped backwards, and fell; Rice denied punching him. Rice walked out of the store, and retrieved tissues from his car to blow his nose.

Rice met defendant outside of the store, and they discussed the incident. He had a conversation with Mitchell, told him that "[i]t was a verbal" incident, that Shabazz was drunk, and that the matter was resolved. Then, Garner informed Rice that the incident was likely captured on the security footage, and Garner and the defendants went to the security office. He testified that Garner could not recover any tape showing the incident, and he and defendant left the room. He denied taking any videotapes.

After the verdict was returned, both defendants moved for a new trial, R. 3:20-1, or in the alternative, for a judgment of acquittal, R. 3:18-2. In a written opinion that accompanied the order denying the motions, the judge concluded that there was sufficient evidence of defendant's guilt beyond a reasonable doubt on the conspiracy charge. He sentenced defendant as noted above, and this appeal followed.

II.

(a)

Defendant argues that her motion for a judgment of acquittal, R. 3:18-2, or alternatively, for a new trial, R. 3:20-1, should have been granted.

When deciding a motion for acquittal based upon the insufficiency of the State's evidence, the trial court must apply the time-honored standard set forth in State v. Reyes, 50 N.J. 454, 459 (1967):

[W]hether[] viewing the . . . evidence in its entirety, be that evidence direct or circumstantial, and giving the State the benefit of all its favorable testimony as well as all of the favorable inferences which reasonably could be drawn therefrom, a reasonable jury could find guilt of the charge beyond a reasonable doubt.

[Citation omitted.]

We review the decision of the trial judge de novo applying the same standard. State v. Bunch, 180 N.J. 548-49 (2004). On the other hand,

"[a] motion for a new trial is addressed to the sound discretion of the trial judge, and the exercise of that discretion will not be interfered with on appeal unless a clear abuse has been shown." State v. Russo, 333 N.J. Super. 119, 137 [(App. Div. 2000)]. Our scope of review is limited to a determination of "whether the findings made by the trial court could reasonably have been reached on sufficient credible evidence present in the record." Ibid. Moreover, we will "give deference to the trial judge's feel for the case since he presided over [it] . . . and had the opportunity to observe and hear the witnesses as they testified." Ibid.

[State v. Brooks, 366 N.J. Super. 447, 454 (App. Div. 2004).]

"The trial court's ruling on such a motion shall not be reversed unless it clearly appears that there was a miscarriage of justice under the law." R. 2:10-1.

Here, the trial judge denied defendant's motion for judgment of acquittal, or alternatively for a new trial, as to the charge of conspiracy to commit official misconduct, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:30-2(a). In his written opinion, the judge noted that "there was no direct evidence that the defendants agreed that they or one of them would commit [o]fficial [m]isconduct . . . ." The judge then reviewed the circumstantial evidence that supported the conclusion that defendant entered into a criminal agreement with Rice. Regarding defendant's first encounter with Mitchell, the judge determined that "the jury could rationally find that [defendant] permitted . . . Rice to speak on her behalf. Furthermore, an agreement to cover-up the incident can be inferred from her decision to deny any physical altercation when later questioned independently by . . . Mitchell." The judge further concluded that "after permitting . . . Rice to mischaracterization [sic] the incident to . . . Mitchell, [d]efendant . . . took . . . Rice into the security booth to view the tapes. Defendant . . . enabled . . . Rice to have access to the tapes."

The judge then considered the evidence that supported the conclusion that defendant "acted with the purpose of promoting or facilitating the crime of [o]fficial [m]isconduct." He noted "there was no need for . . . Rice to enter the security booth and view the tapes absent intent to tamper with them in some way. Defendant . . . brought . . . Rice into the security booth. . . . She used her position to invite or permit . . . Rice to accompany her to the security booth. The evidence established that . . . Rice would not have had the right or access to the tapes absent . . . [d]efendant['s] . . . help." The judge further noted that "despite the contradictory statements made by . . . Garner, the jury could find that [d]efendant . . . saw . . . Rice take the tapes[,]" after Rice asked, in her presence, "about how the tapes should disappear." Finally, the judge noted that defendant "lied to . . . Mitchell by telling him that the incident was merely a verbal disagreement, [thus] promot[ing] the commission of the crime by covering up the truth."

(b)

Purusuant to N.J.S.A. 2C:5-2(a),

A person is guilty of conspiracy with another person . . . to commit a crime if with the purpose of promoting or facilitating its commission he:
 
(1) Agrees with such other person . . . that they or one or more of them will engage in conduct which constitutes such crime or an attempt or solicitation to commit such crime; or

 
(2) Agrees to aid such other person or persons in the planning or commission of such crime or of an attempt or solicitation to commit such crime.

"[T]he agreement to commit a specific crime is at the heart of a conspiracy charge." State v. Samuels, 189 N.J. 236, 245 (2007). "It is the agreement that is pivotal." Id. at 246 (citation omitted). A conspiracy may be proven by circumstantial evidence. See Samuels, supra, 189 N.J. at 246 ("Because the conduct and words of co-conspirators is generally shrouded in 'silence, furtiveness and secrecy,' the conspiracy may be proven circumstantially.") (quoting State v. Phelps, 96 N.J. 500, 509 (1984)); State v. Kamienski, 254 N.J. Super. 75, 94 (App. Div.) ("An implicit or tacit agreement may be inferred from the facts and circumstances.") (citations omitted), certif. denied, 130 N.J. 18 (1992).

However, "[t]here must be intentional participation with the purpose of furthering the goal of committing the crime." Cannel, New Jersey Criminal Code Annotated, comment 5 on N.J.S.A. 2C:5-2 (2010). Thus, the essential elements of conspiracy must be evaluated in terms of the underlying offense. Samuels, supra, 189 N.J. at 246. "[M]ere knowledge, acquiescence, or approval of the substantive offense, without an agreement to cooperate is not enough to establish one as a participant in a conspiracy." State v. Abrams, 256 N.J. Super. 390, 401 (App. Div.) (citation omitted), certif. denied, 130 N.J. 395 (1992).

Here, the underlying offense was official misconduct. N.J.S.A. 2C:30-2 provides:

A public servant is guilty of official misconduct when, with purpose to obtain a benefit for himself or another or to injure or to deprive another of a benefit:

a. He commits an act relating to his office but constituting an unauthorized exercise of his official functions, knowing that such act is unauthorized or he is committing such act in an unauthorized manner . . . .

Therefore, to support the conspiracy charge against defendant, the State was required to prove beyond a reasonable doubt that "with the purpose of promoting or facilitating [the] commission" of the crime of official misconduct, defendant agreed with Rice that one of them would commit that crime.

In deciding the motion for acquittal made at the end of the State's case, the judge asked the prosecutor, "specifically, what is the misconduct that the State is alleging?" The prosecutor responded, "The removal of the videotapes and the subsequent cover up of such." The judge followed by inquiring, "And when you say the subsequent cover up, what actions were the cover up?" The prosecutor responded, "Officer Rice leaving the Pathmark with those tapes and [defendant] lying to . . . Mitchell about what transpired after the fact." The State did not contend, and indeed there is not evidence, that Mitchell ever questioned defendant about the existence of the videotape.

In her summation, the prosecutor focused the jury's attention on the State's contention regarding the official misconduct charge. She observed that the evidence demonstrated that Rice "took those tapes knowing that it was evidence of a crime and he had an affirmative duty to secure those tapes." Regarding the conspiracy count, the prosecutor told the jury that defendants' agreement

start[ed] when they set this whole situation in motion . . . [w]hen [defendant] . . . tells . . . Shabazz, ["]You don't want any problems with Brian Rice. She does nothing during this fight, . . . until things get out of hand. And then, when Brian Rice says it was a verbal to . . . Mitchell, [defendant] stays silent. She doesn't say anything. [Defendant] gives Brian Rice access to that security room. She's back there with him. He takes the tapes and she allows him to do so and then she furthers this conspiracy by lying to Mitchell afterwards.

In his instructions regarding the official misconduct charge as to Rice, the judge followed Model Jury Charge (Criminal), "Official Misconduct" (2006), but did not tell the jury what specific conduct by Rice was the subject of the charge.

At oral argument before us, the State has reiterated the position it took at trial, specifically, that the official misconduct in this case was Rice's theft of the tapes, not the assault of Shabazz and not Rice's lie to Mitchell that the altercation was only "verbal." Viewed through this prism, we must conclude that the proof was insufficient to allow a reasonable juror to find beyond a reasonable doubt that defendant agreed with Rice that one of them would steal the tapes, and that she acted "with the purpose of promoting or facilitating" Rice's theft of the tapes.

If the object of this conspiracy was, as the State contends, Rice's theft of the tapes, we are hard-pressed to see how any of the conduct that occurred before defendants went to the security booth is evidence of their conspiratorial agreement. Certainly, defendant's advice to Shabazz that he should seek no trouble from Rice, her failure to immediately intervene in the dispute, and her standing mute when Mitchell initially spoke to Rice cannot be evidence of her agreement to help Rice steal the videotapes. Among other things, Mitchell himself testified that protocol dictated that Rice, as the senior officer, provide the answers to his questions.

The prosecutor argued, and the judge concluded in denying defendant's motions, that she gave Rice access to the security office, and that she "invite[d] or permit[ted]" him to accompany her there. The State argues that Rice "would not have been able to access the tapes without defendant's help." The evidence, however, is directly to the contrary. Garner noted that there was nothing unusual in Rice being in the security office given his former position as an off-duty security officer in the store, and there is nothing to indicate that Rice could not have gained access but for defendant's assistance. Indeed, there is nothing in the record to suggest that defendant actually suggested that they go to the security booth, or assisted Rice in gaining access.

As the judge noted, there was conflicting evidence regarding defendant's presence in the room when Rice took the tapes. However, as he further noted, the jury could have concluded that Garner's prior statement that defendant was present was more credible than his actual statement at trial that she was not. Nevertheless, defendant's presence when Rice stole the tapes is insufficient to establish her guilt of conspiracy beyond a reasonable doubt. As we have noted, "[t]here must be intentional participation in the activity with a goal of furthering the common purpose; mere association is inadequate." Abrams, supra, 256 N.J. Super. at 401 (citation omitted).

We come, therefore, to the last portion of the evidence that the State argues, and the judge concluded, demonstrates both defendant's conspiratorial agreement with Rice and her purpose to "promote or facilitate" his actions. Specifically, the State contends that defendant's subsequent conversation with Mitchell "promoted and/or facilitated the crime by covering up the truth."

First, we note that the statements defendant made to Mitchell clearly had the capacity to obfuscate any investigation of the assault upon Shabazz. But, it is questionable whether defendant's statement that the altercation was "a verbal" was designed to mask Rice's theft of the tapes. Clearly, defendant may have wished to avoid providing any further damning evidence that Rice had assaulted Shabazz, but the assault was not the gravamen of the State's charge of official misconduct. The fact that defendant told Mitchell that the altercation was only verbal was unlikely to "cover up" the theft of the tapes, particularly since defendant already knew from Mitchell that Shabazz intended to file his complaint with Internal Affairs. In fact, defendant's statements served no such purpose because one of Kurtz's first investigative steps was to try and secure the videotapes.

But even if her intention was to cover up the theft of the tapes, defendant's statements to Mitchell after Rice stole the tapes are not sufficient to permit the jury to reasonably infer the existence of the conspiracy beforehand, or that they were anything other than statements designed to conceal the theft. As we have recently noted, "'[a]cts of covering up, even though done in the context of a mutually understood need for secrecy, cannot themselves constitute proof that concealment of the crime after its commission was part of the initial agreement among the conspirators.'" State v. Cagno, 409 N.J. Super. 552, 583 (App. Div.) (quoting Grunewald v. United States, 353 U.S. 391, 401-02, 77 S. Ct. 963, 972, 1 L. Ed. 2d 931, 942 (1957)), certif. granted in part and denied in part, 200 N.J. 550 (2009).

In short, we are constrained to conclude that there was insufficient proof adduced before the jury that defendant conspired with Rice to commit the crime of official misconduct. Her motion for acquittal, therefore, should have been granted.

In light of our disposition, we need not consider the balance of defendant's arguments.

 
Reversed.

The indictment mistakenly indicated that the tampering charge was a third-degree offense.

The same jury found Rice guilty of all charges.

There was no testimony as to exactly what was displayed on the videotape and whether it supported Shabazz' version of the events.

In deciding defendants' motion for acquittal brought at the conclusion of the State's case, the judge, noting the wording of the indictment, limited the jury's consideration to this part of the statute, and not subsection (b). Subsection (b) also defines official misconduct as occurring if a public official "knowingly refrains from performing a duty which is imposed upon him by law or is clearly inherent in the nature of his office." The judge charged the jury only with respect to subsection (a).

In his final charge to the jury, the judge limited his instructions on the conspiracy count to subsection (a)(1) of N.J.S.A. 2C:5-2, and did not charge the jury as to subsection (a)(2).

While defendant has not challenged the charge on appeal, we believe it demonstrates how the line between the State's allegation of Rice's substantive misconduct -- stealing the tape -- and the allegation that defendant conspired with him to do so, was blurred. In other words, the jury was never told that the act of official misconduct alleged by the State was Rice's theft of the tapes; if so instructed, they would have been limited to considering whether the State proved beyond a reasonable doubt that defendant conspired with Rice to steal the tapes, as opposed, for example, to agreeing with him not to disclose that an assault had occurred. Indeed, in regard to the tampering charge, the jury was instructed to consider defendant's guilt only as an accomplice to Rice's theft of the tapes. By its verdict, the jury concluded that the State failed to prove beyond a reasonable doubt that defendant "aid[ed] or agree[d] or attempt[ed] to aid [Rice] in planning or committing" the theft of the tapes. See N.J.S.A. 2C:2-6c(1)(b).

Nor has the State advanced an argument that defendant's conspiratorial agreement with Rice encompassed her own official misconduct.

(continued)

(continued)

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A-2778-09T2

August 17, 2010