STATE OF NEW JERSEY v. JOSEPH DIBIANCA

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3708-10T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JOSEPH DIBIANCA,

Defendant-Appellant.

______________________________

January 30, 2013

 

Argued January 14, 2013 - Decided

 

Before Judges Parrillo and Fasciale.

 

On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 09-10-2387.

 

Eric H. Lubin argued the cause for appellant (Jacobs & Barbone, P.A., attorneys; Mr. Lubin and Louis M. Barbone, on the brief).

 

Jennifer E. Kmieciak, Deputy Attorney General, argued the cause for respondent (Jeffrey S. Chiesa, Attorney General, attorney; Ms. Kmieciak, on the brief).

PER CURIAM

After pleading guilty, defendant appeals from his conviction for fourth-degree endangering the welfare of a child, N.J.S.A. 2C:24-4b(5)(b). We affirm.

An eight-year-old boy (the victim) indicated to his stepfather that "a few" times defendant showed him computer photographs of nude girls, between the ages of twelve and sixteen. Defendant is the step-grandfather of the victim. The victim's mother reported the matter to the police, which resulted in an investigation.

Detective Frank Schalek interviewed the victim,1 who verified the mother's report. Detectives Schalek and Gregory Zaccagnino went to defendant's residence and defendant consented to their entry into his home. Defendant refused, however, to allow them to inspect his computer. As a result, Detective Zaccagnino obtained a search warrant, which was executed later that day.2 The police seized the computer, inspected it, and discovered "hundreds of pictures and/or video[s]" of child pornography.

A grand jury returned an indictment charging defendant with fourth-degree endangering the welfare of a child, N.J.S.A. 2C:24-4b, and third-degree endangering the welfare of a child, N.J.S.A. 2:C24-4a. The prosecutor then rejected defendant's application for admission into the pre-trial intervention (PTI) program, and the judge subsequently denied defendant's PTI appeal concluding that the prosecutor's decision did not constitute a patent and gross abuse of discretion. The judge then issued a fourteen-page written decision and denied defendant's motions to dismiss the indictment and suppress evidence.

Defendant pled guilty to fourth-degree endangering and provided an adequate factual basis. Pursuant to the plea agreement, the judge sentenced defendant to a one-year probation term, ordered no contact with the victim, and imposed the appropriate fines and penalties. This appeal followed.

On appeal, defendant raises the following points:

POINT I

THE PROSECUTOR'S OBJECTION TO DEFENDANT'S ENTRY INTO THE PRE-TRIAL INTERVENTION PROGRAM CONSTITUTED A PATENT AND GROSS ABUSE OF DISCRETION.

 

POINT II

THE INDICTMENT MUST BE DISMISSED AS A PRODUCT OF PROSECUTORIAL MISCONDUCT; THE GRAND JURY WAS DENIED THE TRUE FACTS, AND SKILLFULLY MISLEAD BY PRESENTATION OF FABRICATED EVIDENCE.

 

POINT III

THE LOWER COURT ERRED WHEN IT DENIED DEFENDANT'S MOTION FOR A FRANK'S HEARING EVEN THOUGH IT WAS PROVEN THAT THE SEARCH WARRANT WAS PREDICATED UPON AN AFFIDAVIT WHICH IS MATERIALLY FALSE AND CONTAINED INTENTIONALLY OMITTED MATERIAL AND CRITICAL FACTS, WHICH, WHEN SO EXCISED, DID NOT ESTABLISH PROBABLE CAUSE.

 

 

POINT IV

THE WARRANTLESS POLICE ENTRY AND SEIZURE OF THE DEFENDANT AND HIS HOME FOR A PERIOD OF SIX HOURS INVALIDATES THE WARRANT OF SEPTEMBER 12, 2008.

 

POINT V

ALTERNATIVELY, THERE WAS NO PROBABLE CAUSE THAT A CRIME HAD BEEN COMMITTED TO JUSTIFY A WARRANT IN THE FIRST INSTANCE.

 

POINT VI

ALL ORAL STATEMENTS MADE BY THE DEFENDANT WHILE IN CUSTODY AND DURING THE ILLEGAL WARRANTLESS SEIZURE OF THE DEFENDANT AND HIS PROPERTY MUST BE SUPPRESSED.

 

I.

We begin by addressing defendant's contention that the prosecutor abused her discretion by rejecting his application into the PTI program.

Eligibility for PTI is based primarily on "the applicant's amenability to correction, responsiveness to rehabilitation[,] and the nature of the offense." N.J.S.A. 2C:43-12b. "Admission [into PTI] requires a positive recommendation from the PTI director and the consent of the prosecutor." State v. Negran, 178 N.J. 73, 80 (2003) (citing State v. Nwobu, 139 N.J. 236, 246 (1995)). A determination whether to admit a defendant into the PTI program is "'primarily individualistic in nature[,]' and a prosecutor must consider an individual defendant's features that bear on his or her amenability to rehabilitation." Nwobu, supra, 139 N.J. at 255 (quoting State v. Sutton, 80 N.J. 110, 119 (1979)). In determining eligibility, prosecutors must consider the factors in N.J.S.A. 2C:43-12 and Rule 3:28, and the accompanying Guidelines, which "elucidate the purposes, goals, and considerations relevant to PTI." Negran, supra, 178 N.J. at 80 (internal quotation marks omitted).

A "[d]efendant generally has a heavy burden when seeking to overcome a prosecutorial denial of his admission into PTI." State v. Watkins, 193 N.J. 507, 520 (2008). "In respect of the close relationship of the PTI program to the prosecutor's charging authority, courts allow prosecutors wide latitude in deciding whom to divert into the PTI program and whom to prosecute through a traditional trial." Negran, supra, 178 N.J. at 82.

The scope of review of such a decision is "severely limited," and has been characterized as one of "'enhanced' or 'extra'" deference. Ibid. (quoting State v. Baynes, 148 N.J. 434, 443-44 (1997)); see Nwobu, supra, 139 N.J. at 246. Therefore, "to overturn a prosecutor's rejection, a defendant must clearly and convincingly establish that the prosecutor's decision constitutes a patent and gross abuse of discretion." Watkins, supra, 193 N.J. at 520 (internal quotation marks omitted). "The question is not whether [the court] disagree[s] with the prosecutor's decision, but whether the prosecutor's decision could not have been reasonably made upon weighing the relevant factors." Nwobu, supra, 139 N.J. at 254.

In rejecting defendant's application, the prosecutor focused "on the nature of the charges [(factor one)], the facts of the case [(factor two),] and the conclusion that the need for deterrence outweighs any benefit that this community would realize through diversion [(factor fourteen)]." The prosecutor stated that

[D]efendant displayed photos of naked females [between the ages of twelve and sixteen] on his computer to his juvenile [step-]grandson. The victim stated that the defendant showed him the photos of naked females on more than one occasion. . . . A search of the defendant's computer revealed . . . child pornography. . . . There were hundreds of videos and images of child erotica . . . . Some of the images . . . involved children being penetrated by objects and engaging in oral sex. . . .

 

Further militating against diversion is the strong opposition of the victim's mother [(factor four)].

 

The State is aware of defendant's law enforcement background, military service[,] and lack of a criminal history [(factor nine)].[3] The State also recognizes defendant's initiative in seeking psychiatric counseling. These factors are perceived as relevant militating factors for sentencing. The State believes that the seriousness of the offenses charged outweigh any benefit, which might arise out of diverting the defendant [(factors fourteen and seventeen)]. Requiring formal criminal prosecution and conviction will have the desired deterrent affect . . . .

 

Applying the above standards, we discern no abuse of discretion in the prosecutor's denial of defendant's application, much less one that is "patent and gross." Watkins, supra, 193 N.J. at 520.

II.

Next, defendant argues that the judge erred by denying his motion to dismiss the indictment. Defendant contends that (1) the State relied solely on Detective Zaccagnino's testimony when it had other available evidence; and (2) Detective Zaccagnino's testimony before the grand jury misrepresented the victim's statement to Detective Schalek. Finally, defendant asserts that the prosecutor failed to present evidence of a parallel family court proceeding between the estranged parents of the victim, which defendant contends would be relevant to issues of credibility.

The purpose of the grand jury is to "determine whether the State has established a prima facie case that a crime has been committed and that the accused has committed it." State v. Hogan, 144 N.J. 216, 227 (1996). It is "an accusative rather than an adjudicative body," and requiring it "to weigh inculpatory and exculpatory evidence would alter the grand jury's historical role." Id. at 229-30. Accordingly, a prosecutor's duty to present exculpatory evidence "is triggered only in the rare case in which the prosecutor is informed of evidence that both directly negates the guilt of the accused and is clearly exculpatory." Id. at 237.

A trial court's authority to dismiss an indictment for alleged deficiencies pursuant to Rule 3:10-2 should not be exercised unless the indictment is "manifestly deficient or palpably defective." Id. at 228-29. A trial judge's decision in this regard will only be reversed upon a showing of clear abuse of discretion. Id. at 229. No such "clear abuse" occurred here.

The prosecutor did not withhold evidence from the grand jurors that either "directly negated" defendant's guilt or was "clearly exculpatory." Evidence of the parallel family court proceeding involving the parents of the victim was completely irrelevant to the criminal charges. As the judge stated, "issues of bias, witness credibility[,] and motive to fabricate are best aired and challenged in the adversarial setting of a trial."

We also reject defendant's contention that Detective Zaccagnino's testimony before the grand jury misrepresented the victim's statement to Detective Schalek. During his September 2008 interview, the victim informed Detective Schalek that while in defendant's home office, defendant showed him pictures on more than one occasion displaying the "chest" and the front "girl's area" of girls who appeared to be sixteen-years-old or younger. Detective Schalek confirmed through hand gestures that the victim was referring to the vaginal area. Detective Zaccagnino's grand jury testimony was consistent with the victim's statements.

III.

Defendant challenges the validity of the search warrant and argues that he is entitled to a Franks4 hearing because Detective Zaccagnino's search warrant affidavit concealed

1. The fact that [the detectives] entered [defendant's] home at 11:30 a.m., and thereafter seized him and his computer for a period of six hours, and used that warrantless seizure, along with un-Mirandized statements, as the springboard to establish probable cause . . .; and[]

 

2. The intentional exclusion of any information with regard to the recently filed and contemporaneous custody battle between [the victim's parents]. . . .

 

Detective Zaccagnino stated in paragraph five of his affidavit that

Det[ective] Schalek and I met with [defendant] at his residence. He allowed us into his house, and we sat at the kitchen counter. During conversation with [defendant], he said he has a computer in the front room adjacent to the living room, and that particular computer has been there for appox[imatley] one year. I asked [defendant] if the room with the computer is referred to as his office, to which he responded yes.

 

In the front room, I saw a beige color Sony desktop computer tower on the second floor beneath the desk. On the desk, I also saw a monitor, keyboard, airplane yoke, CD disks, mini-disk[,] and a zip drive.

Our Supreme Court has recognized that "[t]he limitations

imposed by Franks are not insignificant." State v. Howery, 80

N.J. 563, 567, cert. denied, 444 U.S. 994, 100 S. Ct. 527, 62

L. Ed.2d 424 (1979). First, the defendant "must allege

'deliberate falsehood or reckless disregard for the truth,'

pointing out with specificity the portions of the warrant that

are claimed to be untrue." Ibid. (quoting Franks, supra, 438

U.S. at 171, 98 S. Ct. at 2684, 57 L. Ed. 2d at 682). Here,

defendant contends that Detective Zaccagnino omitted to include information in the affidavit, as opposed to stating that portions of the warrant are untrue. Second, "the misstatements claimed to be false must be material to the extent that when they are excised from the affidavit, that document no longer contains facts sufficient to establish probable cause." Id. at 568 (citing Franks, supra, 438 U.S. at 171, 98 S. Ct. at 2684, 57 L. Ed. 2d at 682). The United States Supreme Court has stated that

if these requirements are met, and if, when material that is the subject of the alleged falsity or reckless disregard is set to one side, there remains sufficient content in the warrant affidavit to support a finding of probable cause, no hearing is required.

 

[Franks, supra, 438 U.S. at 171-72, 98 S.

Ct. at 2684-85, 57 L. Ed. 2d at 682 (1978).]

 

Here, there was no need for a Franks hearing because defendant failed to make a substantial showing of falsity in the warrant affidavit. Moreover, even if paragraph five of the affidavit were removed, "there remains sufficient content in the warrant affidavit to support a finding of probable cause." Likewise, the failure to reference the parallel family part matter does not warrant a Franks hearing because, as the judge determined, "any background information as to the parents' relationship or custody battle is not material to the satisfaction of any elements of the crimes."

IV.

We reject defendant's contention that his rights were

violated by the police remaining at his home until the police obtained a search warrant. Defendant concedes that he invited the detectives into his home and then later refused consent to the search of his computer. The police properly secured defendant's home, on the basis of probable cause, to prevent the destruction or removal of defendant's computer. Segura v. United States, 468 U.S. 796, 810, 104 S. Ct. 3380, 3388, 82 L. Ed. 2d 599, 612 (1984) ("[T]he heightened protection we accord privacy interests is simply not implicated where a seizure of premises, not a search, is at issue.); State v. Ford, 278 N.J. Super. 351, 356 (App. Div. 1995) ("[A] seizure affects only possessory interests, not privacy interests." (internal quotation marks omitted)). We agree, therefore, with the judge that

the ephemeral nature of the evidence suspected to be present on [d]efendant's home computer, the investigators acted appropriately by staying in his home so that he would not be left alone with the time and opportunity to attempt to destroy any evidence that a court ordered search might reveal.

There was no constitutional violation in the police entry into defendant's home because he freely allowed them entrance. When he refused to allow the police to seize the computer, one of the officers left to secure a warrant, which was obtained six hours later, while another officer remained in the home to secure the evidence lest it be destroyed. Thus, no constitutional violation occurred.

V.

Finally, we reject defendant's argument that the search warrant was unsupported by probable cause. Probable cause is "more than mere suspicion but less than legal evidence necessary to convict." Sanducci v. City of Hoboken, 315 N.J. Super. 475, 480 (App. Div. 1998). It is a "well-grounded" suspicion that an offense has been committed. State v. Moore, 181 N.J. 40, 45 (2004). "Probable cause exists where 'the facts and circumstances within . . . [the officers'] knowledge, and of which they had reasonably trustworthy information, [are] sufficient in themselves to warrant a man of reasonable caution in the belief that' an offense has been or is being committed." Brinegar v. United States, 338 U.S. 160, 175-76, 69 S. Ct. 1302, 1310-11, 93 L. Ed. 1879, 1890 (1949) (alterations in original) (quoting Carroll v. United States, 267 U.S. 132, 162, 45 S. Ct. 280, 288, 69 L. Ed. 543, 555 (1925)); accord Moore, supra, 181 N.J. at 46. In determining whether probable cause existed, a court should consider the "totality of the circumstances," Moore, supra, 181 N.J. at 46, including the police officer's "'common and specialized experience,'" Schneider v. Simonini, 163 N.J. 336, 362 (2000) (quoting State v. Contursi, 44 N.J. 422, 431 (1965)), cert. denied, 531 U.S. 1146, 121 S. Ct. 1083, 148 L. Ed. 2d 959 (2001). The search warrant that issued was based on probable cause insofar as the victim told police that defendant showed him pictures of naked young girls.

We have carefully considered defendant's remaining arguments in light of the record and applicable legal principles and conclude that his arguments are without sufficient merit to warrant discussion in this opinion. R. 2:11-3(e)(2).

Affirmed.

1 The parties agree that Detective Schalek was improperly identified as P.O. Franks in a September 10, 2008 transcript of the interview.

2 The police later obtained two additional warrants to conduct a forensic analysis of the computer.

3 Defendant, approximately seventy-years-old at the time of the incidents, had served more than twenty-four years as a Sheriff's Officer.

4 Franks v Delaware, 438 U.S. 154, 98 S. Ct. 2674, 57 L. Ed. 2d 667 (1978).