STATE OF NEW JERSEY v. DIANE ZAKAREVICIS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DIANE ZAKAREVICIS, a/k/a DIANA ZAKAREVICIS,

a/k/a DIANE LEE ZAKAREVICIS, a/k/a DIANA LEE

ZAKARAVICIS, a/k/a DIANA FATOLA,

Defendant-Appellant.

__________________________________

October 22, 2015

Submitted April 13, 2015 Decided

Before Judges Espinosa, St. John and Rothstadt.

On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 12-01-0082.

Joseph E. Krakora, Public Defender, attorney for appellant (Michael C. Kazer, Designated Counsel, on the brief).

Andrew C. Carey, Middlesex County Prosecutor, attorney for respondent (Joie Piderit, Assistant Prosecutor, on the brief).

The opinion of the court was delivered by

ROTHSTADT, J.A.D.

A Middlesex County grand jury indicted defendant Diane Zakarevicis, charging her with one count of third-degree theft by deception, N.J.S.A. 2C:20-4. The charge arose from her involvement in a scheme in which she and her co-defendant befriended an eighty seven year old man, drove him on several occasions to his bank's various branches to make withdrawals from his account, and took the elderly man's money.1 A jury found her guilty of the one charge. After her conviction, the court sentenced defendant to a five-year term of probation and required her to pay restitution.

On appeal, defendant argues

POINT I

THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION TO DISMISS THE INDICTMENT, OR IN THE ALTERNATIVE TO ADJOURN THE TRIAL, BECAUSE DISCOVERY VIOLATIONS BY THE STATE DEPRIVED DEFENDANT OF A FAIR TRIAL.

POINT II

DEFENDANT'S CONVICTIONS SHOULD BE REVERSED BECAUSE OF PROSECUTORIAL MISCONDUCT IN SUMMATION.

POINT III

THE PROSECUTOR UNDERMINED THE TRIAL COURT'S RULING BY FAILING TO INSTRUCT THE STATE'S WITNESSES NOT TO REFER TO MR. WILD'S STATUS AS A WORLD WAR II VETERAN.

We have considered defendant's arguments in light of our review of the record and applicable legal principles. We affirm.

The record of defendant's trial indicates the testimony of several witnesses and various exhibits established her involvement in the scheme to defraud her victim. The victim and defendant's co-defendant2 testified that it was defendant who drove them to the bank branches and accompanied the victim into the bank to make most of the twenty-two withdrawals that were made from his account during the period between October and December 2010.3 The victim's son, a joint owner of the account, testified he assisted his father with his finances, but had no knowledge of the twenty-two withdrawals. A bank representative, who had also been assisting the victim with his finances after the victim's spouse died, specifically testified as to defendant bringing the victim into a bank branch and the witness discovering the depletion of the elderly victim's account through the multiple withdrawals.4 The same bank representative recalled a later conversation with defendant, in which she was asked by defendant if she remembered their earlier conversation about the depletion of the victim's account as being one in which defendant reported to her that there was suspicious activity in the account. When the bank representative disagreed that conversation happened, defendant stated "If you are not going to say that, I might go to jail."

Defendant also admitted to being with the victim on two occasions. In a video statement to police following her arrest, defendant admitted accompanying the victim to the bank twice on two occasions.

Bank records admitted into evidence established there were in fact twenty-two withdrawals made during the identified period on specific dates. Footage from the bank's surveillance cameras depicted defendant and the victim in one branch on a morning in October 2010 and at another branch in December 2010.

After considering the evidence, the jury convicted defendant and the court sentenced her. This appeal followed.

I.

We first turn to defendant's argument regarding the prosecutor's late service of discovery. The discovery consisted of copies of the victim's bank records, including withdrawal slips, and emails exchanged by a police department and the victim's bank. The emails related to the bank transmitting photographs from surveillance cameras at its branches that did not depict either the victim or defendant because they were from the wrong dates and times. The withdrawal slips, which had not been previously served, and statements contained the same information the prosecutor previously served in the form of "screen shots" of the victim's bank account statements from the bank's computers. The "screen shots" did not contain the name of each of the account holders, but did reflect the dates upon which the withdrawals occurred.

The prosecutor confirmed he received the records from the bank January 15, 2013, which he turned over to defense counsel prior to the commencement of trial on January 17, 2013; and he received the emails on January 24, which he served on counsel the next day. The prosecutor stated he did not intend to use the documents at trial.

Defense counsel immediately raised an issue about the late service of the discovery and sought an adjournment of the trial that was about to commence. The court was not inclined to grant the request, but agreed to consider the parties' discovery dispute over an extended period from January 17, 2013, the date the trial was scheduled to begin, to January 29, when the court denied defendant's motion to dismiss the indictment with prejudice.

During the intervening days, the court allowed the defense to attempt to develop a specific showing as to how the late discovery impacted defendant's ability to defend against the charge. Specifically, defense counsel argued that the documents supplied information identifying, for the first time, the exact times of withdrawals in which defendant was alleged to have participated. According to defense counsel, if he had that information early on, he might have been able to assert an alibi defense to the charge. As a result, the court allowed the extended period to see if counsel could come forward with proof of an alibi based on the newly served documents. Despite defense counsel having that opportunity, defendant could not produce any proof of an alibi for any specific date.

Counsel filed a motion to dismiss the indictment, which the court denied, finding that since defendant was aware of the dates of the alleged withdrawals from the beginning of the case, she was not prejudiced by the additional information regarding the time of each withdrawal because she could have asserted an alibi defense based on the dates alone. As a result the discovery which was served out of time, but not in bad faith, was not material in that it would not affect the outcome of the case.5

On appeal, defendant argues the court should have granted the motion or adjourned the trial. We disagree.

"The choice of sanctions appropriate for discovery-rule violations is left to the broad discretion of the trial court." State v. Marshall, 123 N.J. 1, 134 (1991), cert. denied, 507 U.S. 929, 113 S. Ct. 1306, 122 L. Ed. 2d 694 (1993). "[T]he decision whether to dismiss an indictment lies within the discretion of the trial court, and that exercise of discretionary authority ordinarily will not be disturbed on appeal unless it has been clearly abused." State v. Hogan, 144 N.J. 216, 229 (1996) (citations omitted).

Dismissal of an indictment "is the last resort because the public interest, the rights of victims and the integrity of the criminal justice system are at stake." State v. Ruffin, 371 N.J. Super. 371, 384 (App. Div. 2004). "[T]his drastic remedy is inappropriate where other judicial action will protect a defendant's fair trial rights." State v. Clark, 347 N.J. Super. 497, 508 (App. Div. 2002).

We conclude that the trial court correctly exercised its discretion by denying the motion to dismiss and the adjournment request. Although the documents were not served until the trial's commencement, they were not "material" and the late service did not prejudice defendant.

We, of course, acknowledge that a defendant "has a constitutionally protected privilege to request and obtain from the prosecution evidence that is either material to the guilt of the defendant or relevant to the punishment to be imposed." State v. Hollander, 201 N.J. Super. 453, 478 (App. Div.) (citing Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 1196, 10 L. Ed. 2d 215, 218 (1963)),6 certif. denied, 101 N.J. 335 (1985); see also R. 3:13-3. However, the evidence must be "material." See State v. Martini, 160 N.J. 248, 268 (1999)("In order to establish a Brady violation, the defendant must show that: (1) the prosecution suppressed evidence; (2) the evidence is favorable to the defense; and (3) the evidence is material.")(emphasis added).

Evidence is material only "if there is a 'reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different'[; a] 'reasonable probability' is one that is 'sufficient to undermine confidence in the outcome'". Id. at 269 (quoting United States v. Bagley, 473 U.S. 667, 682, 105 S. Ct. 3375, 3383, 87 L. Ed. 2d 481, 494 (1985)). The focus of the determination of materiality is whether the discovery violation undermined the essential fairness of the trial. State v. Carter, 69 N.J. 420, 433 (1976) (stating the test is "whether the undisclosed evidence, if it had been presented to the jury, might have led the jury to entertain a reasonable doubt about defendant's guilt").

The bank account information not turned over by the prosecutor until commencement of the trial was neither inculpatory nor exculpatory, nor would it have altered the outcome of this case. It merely corroborated information already in defendant's possession as to the dates and amounts of the withdrawals, a fact not in dispute, and one established by other evidence. Here, while the bank records were relevant, they were not material to defendant's guilt as the other evidence against defendant was overwhelming. There was not a reasonable probability that, had the delayed discovery been disclosed to the defense earlier, the result of the proceeding would have been different.

We also find defendant's argument that the information was material to her development of a possible alibi defense to be without merit. Suffice it to say that she never claimed the defense, see Rule 3:12-2, and, if she was inclined to pursue it, she was fully aware of the dates of the withdrawals from the inception of the case and could have easily begun retracing her steps on each of the dates alleged. That investigation did not have to begin only with the service of the late discovery. We conclude knowing the exact time would not have put her in any better position.

II.

Defendant next argues her conviction should be set aside because of prosecutorial misconduct. She cites to two statements made by the prosecutor to the jury in summation. The first referred back to defense counsel's comments made during opening statements about the burden of proof in which he stated

Why do we require this high burden, why proof beyond a reasonable doubt? Because it's just that important, folks. We function under a notion, our founders of this nation, they established a system of justice where they believed that it was better to let nine guilty men walk free than to convict an innocent man, so they established a constitution where a criminal defendant has certain rights that you don't get elsewhere.

In his summation, the prosecutor stated

You know, Counsel said something to you in his opening that I couldn't disagree with more. He said that this system of ours is intended so that nine guilty people could walk free to prevent an innocent person from being convicted. That's an appalling and shocking statement to me because I would like to think that this system provides for nine guilty convictions, nine guilty verdicts and one acquittal if you had nine guilty people and one innocent person. That's what I think the system should do. This system depends upon 12 jurors . . . this system is designed to get the truth and to have you decide whether or not a person like [defendant] is guilty or not, not to let nine guilty people go to forsake the one innocent person who might get convicted wrongfully. That's not what we're all about, and I think that was an attempt to scare you, to have you quivering in your boots about all these rules that . . . favor the defendant, like the presumption of innocence, like guilt beyond a reasonable doubt.

Defense counsel objected to the prosecutor's remarks and the court instructed the jury

Ladies and gentlemen, what attorneys say during their closing argument, as well as what they say during their opening arguments is not evidence, right, relative to principles of law, constitutional principles. I'll teach you about them.

According to defendant, the instructions were not sufficient "to cure the prejudice to defendant" caused by the improper remarks.

The other objectionable remarks occurred when the prosecutor told the jury

Well, let me tell you something about criminals. When they get arrested, a person who commits a crime, right, not an innocent person, I'm talking about a person who commits a crime, when he or she gets arrested he or she either confesses or lies to the police about their noninvolvement. Again, follow me on the supposition. A person who commits an offense, right, will either confess or lie about it. That shouldn't be a secret to anybody here. That's not a revelation from a prosecutor who's been doing this for a while, you all should understand that.

[Co-defendant], when he got arrested, he confessed. [Defendant], on the other hand, didn't . . . .

Defendant argues these remarks involved "improper name calling" when the prosecutor used the word "criminal," and, when the prosecutor told the jury that he was "a prosecutor who's been doing this for a while," he improperly "expressed an opinion that defendant was guilty."7 She further argues that the "cumulative effect" of the prosecutor's remarks "had the capacity to affect the jury's fact-finding duties and constitute[d] reversible error." We disagree.

"The standard for reversal based upon prosecutorial misconduct is well-settled in the law. It requires an evaluation of the severity of the misconduct and its prejudicial effect on the defendant's right to a fair trial." State v. Timmendequas, 161 N.J. 515, 575 (1999), cert. denied, 534 U.S. 858, 122 S. Ct. 136, 151 L. Ed. 2d 89 (2001). "[P]rosecutorial misconduct is not grounds for reversal . . . unless the conduct was so egregious as to deprive defendant of a fair trial." Ibid. (citation omitted); see also State v. Wakefield, 190 N.J. 397, 438 (2007) ("'[To]. . . warrant a new trial the prosecutor's conduct must have been clearly and unmistakably improper, and must have substantially prejudiced defendant's fundamental right to have a jury fairly evaluate the merits of his defense.'") (quoting State v. Smith, 167 N.J. 158, 181 (2001)), cert. denied, 552 U.S. 1146, 128 S. Ct. 1074, 169 L. Ed. 2d 817 (2008).

Nevertheless, because jurors are likely to accord special deference to the comments of the prosecutor, see State v. Walden, 370 N.J. Super. 549, 558 (App. Div.), certif. denied, 182 N.J. 148 (2004); see also Berger v. United States, 295 U.S. 78, 88, 55 S. Ct. 629, 633, 79 L. Ed. 2d 1314, 1321 (1935), courts have identified particular conduct that must be avoided. For example, prosecutors are prohibited from presenting their personal opinion or beliefs to the jury. Specifically, "[a] prosecutor is guilty of misconduct if he implies to the jury that he possesses knowledge beyond that contained in the evidence presented, or if he reveals that knowledge to the jury," State v. Feaster, 156 N.J. 1, 59 (1998) (citation omitted), cert. denied, 532 U.S. 932, 121 S. Ct. 1380, 149 L. Ed. 2d 306 (2001), because "[t]he expression of personal opinion places the prosecutor's own credibility and the prestige of the office against that of defense witnesses." State v. Michaels, 264 N.J. Super. 579, 640 (App. Div. 1993), aff'd, 136 N.J. 299 (1994). Consequently, prosecutors must refrain from opining "in such manner that the jury may understand the opinion or belief to be based upon something which he knows outside the evidence." State v. Thornton, 38 N.J. 380, 398 (1962), cert. denied, 374 U.S. 816, 83 S. Ct. 1710, 101 L. Ed 2d, 1039 (1963). Also, a prosecutor is not to employ "degrading epithets" or engage in name calling when describing a defendant to a jury. State v. Pennington, 119 N.J. 547, 577 (1990).

We conclude the prosecutor's comparison of defendant to a lying criminal was improper, although not enough to warrant a reversal, and defendant's other arguments lack merit, particularly in light of the court's curative instruction and final charge to the jury. A prosecutor cannot make statements that describe a defendant as a liar or criminal. Ibid. However, the prosecutor's isolated comparison of defendant's conduct to that of a criminal or a liar did not give rise to the level of using numerous prohibited epithets, see id. at 576 (referring to prosecutor "making numerous derogatory references about defendant"), or amount to conduct so egregious as to have deprived defendant of a fair trial. See State v. Jackson, 211 N.J. 394, 407-09 (2012) (stating that a finding of prosecutorial misconduct requires a finding that defendant's right to a fair trial has been prejudiced as a direct result of a prosecutor's remarks). We reach the same conclusion for the same reason regarding the prosecutor's fleeting reference to his "having been doing this for a while."

Turning next to the prosecutor's comments about the burden of proof, the trial court instructed the jury that it could not consider counsel's statements regarding the "principles of law" relative to the burden of proof and it correctly charged the jury with the applicable law. It is presumed that the jury followed these instructions. See Richardson v. Marsh, 481 U.S. 200, 211, 107 S. Ct. 1702, 1709, 95 L. Ed. 2d 176, 188 (1987); State v. Burns, 192 N.J. 312, 335 (2007); State v. Farmer, 366 N.J. Super. 307, 319 (App. Div.), certif. denied, 180 N.J. 456 (2004). Also, a judge's final instruction to the jury that the remarks of the attorneys in their opening and closing statements are not to be considered as evidence serves to reduce any potential prejudice created by the challenged comments. State v. Ramseur, 106 N.J. 123, 323 (1987); State v. Collins, 262 N.J. Super. 230, 238 (App. Div. 1993).

We find that the court ameliorated any potential prejudice resulting from the remarks with its curative instruction. Thus, even if the prosecutor's comment was better left unsaid, the conduct was not so egregious that it deprived defendant of a fair trial. See Jackson, supra, 207 N.J. at 407-09. Coupled with the judge's instructions on burden of proof, the curative instruction alleviated any prejudice resulting from the prosecutor's remark. See State v. Jenkins, 349 N.J. Super. 464, 479 (App. Div.) (finding no prosecutorial misconduct where curative instruction given regarding prosecutor's implication that defendant bore burden of proof), certif. denied, 174 N.J. 43 (2002).

III.

Defendant's remaining contention, regarding comments made by the victim and the bank representative in contravention of instructions from the court through counsel, about the victim being a veteran who served in World War II, is without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). Suffice it to say, the eighty seven year old victim forgot the instruction and the bank representative mentioned it in passing. The judge gave an immediate curative instruction and, as noted above, we have no reason to believe that the jury did not follow the judge's direction or that the reference caused an unfair trial or unjust result.

Affirmed.

1 We are informed the victim passed away in June 2014.

2 Defendant's co-defendant pled guilty pursuant to a plea agreement that required him to testify truthfully against defendant.

3 According to co-defendant's testimony, defendant was involved in "at least fifteen transactions."

4 The witness not only knew the victim from prior dealings, but also knew defendant, with whom she previously worked with when defendant was a part-time employee of a predecessor bank.

5 The court was aware that there was surveillance footage of defendant at the bank with the victim on at least two occasions and that defendant gave a statement to police admitting to taking the victim to the bank on two occasions.

6 In Brady, supra, 373 U.S. at 87, 83 S. Ct. at 1196-97, 10 L. Ed. 2d at 218, the United States Supreme Court held that "the suppression by the prosecution of evidence favorable to an accused . . . violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." Accord State v. Nelson, 155 N.J. 487, 497 (1998), cert. denied, 525 U.S. 1114, 119 S. Ct. 890, 142 L. Ed. 2d 788 (1999); State v. Russo, 333 N.J. Super. 119, 133-34 (App. Div. 2000).

7 After the prosecutor's summation, defense counsel raised an objection to the prosecutor's remarks. The court considered counsels' arguments and instructed them to listen to the remarks again on the court's recording. The record does not indicate that counsel ever renewed the objection or that the court made any rulings.