STATE OF NEW JERSEY v. JON P. MOORE

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1043-10T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JON P. MOORE, a/k/a JON MOORE,

a/k/a JON PAUL MOORE, a/k/a

JONNI ROTTIN,

Defendant-Appellant.

___________________________________

March 22, 2012

Submitted March 5, 2012 - Decided

Before Judges Parrillo and Hoffman.

On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment

No. 07-10-1570.

Joseph E. Krakora, Public Defender, attorney for appellant (William J. Sweeney, Designated Counsel, on the briefs).

Bruce J. Kaplan, Middlesex County Prosecutor, attorney for respondent (Nancy A. Hulett, Assistant Prosecutor, of counsel and on the brief).

Appellant filed a pro se supplemental brief.

PER CURIAM

Tried by a jury, defendant Jon Moore was convicted of second-degree certain persons not to have weapons, N.J.S.A. 2C:39-7b. He was sentenced to a five-year term with a mandatory five-year parole bar. Id. Defendant appeals and we affirm.

The facts of defendant's predicate conviction and possession of a gun are undisputed. While at Johnson Park in Piscataway at 6:40 p.m. on July 10, 2007, defendant called 9-1-1 and informed the dispatcher that he was going to kill himself. During the six-minute conversation, in which he appeared very calm, defendant identified himself, gave his address, mentioned his prior treatment at a mental health facility, advised he had a loaded gun in his backpack, and described his exact location in the park, near a river. While defendant remained on the phone, police were dispatched to the scene, where they found defendant, cell phone in his hand, still in communication with the dispatcher, who was able to hear the police sirens. After being handcuffed, defendant directed the officer to a backpack on a bench about twenty to thirty feet away. Inside, the officer found a small, black, semi-automatic gun with one bullet in its chamber and a magazine clip, also with one bullet. The ammunition was .380 rounds and the gun was operable. Defendant was transported to Robert Wood Johnson Hospital and later released to the Acute Psychiatric Services Unit of University Hospital.

At trial, defendant introduced Dr. Mark Siegert, an expert in forensic psychology, who opined that defendant was insane at the time of the incident. In rebuttal, the State offered Dr. Howard Gilman, an expert in forensic psychiatry, who reached the opposite conclusion, finding that defendant was malingering his symptoms.

At the close of evidence, defendant moved for a judgment of acquittal, Rule 3:18-1, which was denied by the trial judge, who found the issue of defendant's mental state was for the jury to decide. Crediting the State's proofs, the jury convicted defendant of the weapons offense. Thereafter, defendant moved for a new trial, arguing the jury verdict was against the weight of the evidence. The court denied the relief, finding the verdict did not amount to a manifest denial of justice.

On appeal, defendant, through counsel, argues:

I. IT WAS ERROR TO DENY DEFENDANT'S MOTIONS FOR A JUDGMENT OF ACQUITTAL.

II. DEFENDANT WAS DENIED HIS RIGHTS UNDER THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION BY THE GROSS FAILURE OF THE STATE TO CONDUCT A COMPETENT INVESTIGATION, THE RESULTS OF WHICH COULD WELL HAVE VINDICATED APPELLANT.

Defendant, pro se, raises an additional issue and rephrases

others:

I. COUNSEL['S] FAILURE TO FILE DEFENDANT'S MERITORIOUS NOTICE OF APPEAL IS INEFFECTIVE AND INADEQUATE REPRESENTATION.

II. MULTIPLE ACTS OF PROSECUTORIAL MISCONDUCT, UNCORRECTED BY TRIAL COURT, DEPRIVED DEFENDANT OF HIS RIGHT TO A FAIR AND IMPARTIAL TRIAL (VERDICT).

A. UNFAIR PRACTICES AND MISCONDUCT

BY THE PROSECUTOR'S FAILURE TO

DISCLOSE EXCULPATORY EVIDENCE

VIOLATES DUE PROCESS AND DEPRIVES

DEFENDANT OF A FAIR TRIAL.

III. IT WAS ERROR TO DENY DEFENDANT'S MOTIONS FOR A JUDGMENT OF ACQUITTAL.

We find no merit to these contentions.

I.

On a motion for judgment of acquittal under Rule 3:18-1, the trial court must determine "whether, viewing the State's 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." State v. Reyes, 50 N.J. 454, 458-59 (1967) (citing State v. Fiorello, 36 N.J. 80, 90-91 (1961), cert. denied, 368 U.S. 967, 82 S. Ct. 439, 7 L. Ed. 2d 396 (1962)). Such a motion only takes into account the State's evidence and not any evidence adduced by the defense. State v. Samuels, 189 N.J. 236, 245 (2007); State v. Foreshaw, 245 N.J. Super. 166, 185 (App. Div.), certif. denied, 126 N.J. 327 (1991). Since the burden of persuasion regarding insanity rests with the defendant, N.J.S.A. 2C:4-1; State v. Worlock, 117 N.J. 596, 601 (1990), his mental state is a question of fact for the jury to decide, proof of which, therefore, is not appropriately considered on a motion for judgment of acquittal. State v. Maik, 60 N.J. 203, 209 (1972).

Viewing the State's evidence in its entirety and most favorable light, we are satisfied that a reasonable jury could find all the elements of the weapons offense beyond a reasonable doubt. The testimony of the 9-1-1 dispatcher and responding officer established that defendant was in the park with a firearm. Indeed, defendant, who stipulated to a prior qualifying conviction, admitted as much and police found an operable gun loaded with a single bullet and a magazine containing ammunition in his backpack. Accordingly, defendant's motion for a judgment of acquittal was properly denied.

As was his motion for a new trial based on the sufficiency of the evidence. Our review of a trial court's action on a new trial motion is essentially the same as that controlling the trial judge. Dolson v. Anastasia, 55 N.J. 2, 6-7 (1969). The trial court's ruling on such a motion shall not be reversed unless it clearly appears there was a miscarriage of justice under the law. Ibid.; R. 2:10-1. In this regard, we defer to the trial judge as to those intangible aspects of the case not transmitted by the written record, such as witness credibility and demeanor, and "feel of the case." State v. Locurto, 157 N.J. 463, 471 (1999). Of course, matters of credibility are peculiarly within the jury's domain, Dolson, supra, 55 N.J. at 6, and if a jury "could rationally have found beyond a reasonable doubt that the essential elements of the crime were present[,]" the motion for a new trial must be denied. State v. Carter, 91 N.J. 86, 96 (1982).

Here, the expert proofs as to defendant's state of mind at the time of the incident were conflicting and the jury, as the ultimate arbiter of such matters, was entitled to credit the rebuttal testimony of the State's expert, who opined defendant was sane and malingering his symptoms. Thus, accepting as true the evidence supporting the jury's verdict and all permissible inferences therefrom, we discern no manifest denial of justice under the law.

II.

Defendant next contends that the State suppressed exculpatory evidence of the 9-1-1 tape in violation of Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963). We disagree.

In order to establish a Brady violation, defendant must show that: 1) the State failed to disclose the evidence; 2) the evidence was of a character favorable to defendant; and 3) the evidence was material. State v. Mustaro, 411 N.J. Super. 91, 101 (App. Div. 2009). The Brady rule is invoked when information becomes known after the trial that was known to the State but unknown to the defense. State v. Marshall, 123 N.J. 1, 199 (1991), cert. denied, 507 U.S. 929, 113 S. Ct. 1306, 122 L. Ed. 2d 694 (1993). Evidence is "material" where there is "a reasonable probability that, had the evidence been disclosed to the defense, the results of the proceeding would have been different." United States v. Bagley, 473 U.S. 667, 682, 105 S. Ct. 3375, 3383, 87 L. Ed. 2d 481, 494 (1985); State v. Knight, 145 N.J. 233, 246-47 (1996).

Here, of course, defendant initiated the 9-1-1 call and was therefore well aware of the contents of his own conversation. Yet, the record does not reflect that he ever requested production of the tape of that call. Moreover, through discovery the defense knew the identity of the dispatcher with whom defendant spoke and who testified at trial as to her conversation with defendant. Lastly, defendant has not shown that the 9-1-1 tape would have been favorable to him, much less "material" within the meaning of Brady as having had the capacity to affect the outcome of the trial. Under the circumstances, defendant has simply failed to establish a Brady violation.

We deem defendant's remaining contentions without sufficient merit to warrant discussion in a written opinion.

R. 2:11-3(e)(2).

Affirmed.