STATE OF NEW JERSEY v. JOSEPH ARROYO

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1882-04T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JOSEPH ARROYO,

Defendant-Appellant.

__________________________________

 

Submitted December 12, 2005 - Decided January 30, 2006

Before Judges Lintner and Gilroy.

On appeal from the Superior Court of New Jersey, Law Division, Atlantic County,

04-08-1553.

Yvonne Smith Segars, Public Defender, attorney for appellant (Ruth Harrigan, Designated Counsel, of counsel and on the brief).

Jeffrey S. Blitz, Atlantic County Prosecutor, attorney for respondent (Jack J. Lipari, Assistant County Prosecutor, of counsel and on the brief).

PER CURIAM

Following a two-day jury trial, defendant, Joseph Arroyo, was found guilty of fourth-degree failure to register as a sex offender, N.J.S.A. 2C:7-2a, for failing to verify annually his residential address in Atlantic City. Defendant's motion for new trial was denied. The judge sentenced defendant to eighteen months incarceration. Defendant appeals and we reverse the judgment of conviction.

The facts are substantially undisputed. Defendant was initially registered as a sex offender following his release from prison on July 27, 2000, giving his address as 5 North Hayden Avenue in Pleasantville. Thereafter, he verified his address on June 11, 2001, with Sergeant Allison Carmen of the Pleasantville Police Department. On June 3 and 5, 2002, defendant signed registration forms provided by Corrections Officer Julianne C. Scheese. Scheese was not identified as a corrections officer at trial but as "employed by the State of New Jersey." The forms provided by Scheese advised defendant that if he moved he would have to notify the Pleasantville Police Department and the police department in the town where he intended to live.

On October 25, 2002, defendant registered with the Atlantic City Police Department. On January 10, 2003, Investigator Vicky Gorski of the Atlantic City Police Department verified with defendant that he resided at 219 Oriental Avenue in Atlantic City. After defendant failed to verify his address in October 2003, Betsy Phillips of the Atlantic County Prosecutor's Office sent reminder letters to defendant at the Oriental Avenue address by both regular and certified mail. The certified letter was returned. The letter sent by regular mail, however, did not come back.

Defendant was initially indicted on April 20, 2004. A superseding indictment was returned following a second grand jury hearing held on August 3, 2004. At the initial hearing, during the testimony of the Megan's Law Unit agent, one of the grand jurors asked "How come it takes so long" (from October 2003 to the April grand jury presentation). Although the grand juror responded that an answer was not required, the agent explained that that they have over 500 registrants in Atlantic County, the process is lengthy, and the office is understaffed. At the August 3 Grand Jury hearing, the prosecutor was again asked about the timing. The prosecutor explained that the State did not want to create prejudice by answering the question.

Defendant appeals, raising the following points:

POINT I

THE TRIAL COURT ERRED BY DENYING THE MOTION FOR A NEW TRIAL.

POINT II

THE TRIAL COURT ERRED BY DENYING DEFENDANT'S MOTION TO DISMISS THE INDICTMENT. (PARTIALLY RAISED BELOW.)

POINT III

DEFENDANT IS ENTITLED TO RESENTENCING BECAUSE HIS SENTENCING TERM WAS ENHANCED ON THE BASIS OF FACTS NOT PROVEN TO A JURY BEYOND A REASONABLE DOUBT IN VIOLATION OF THE SIXTH AND FOURTEENTH AMENDMENTS AND HIS SENTENCE IS EXCESSIVE AND ILLEGAL.

Prior to introducing testimony, defendant raised an objection to the use of the registration forms, asserting that the jury would become aware that defendant was subsequently imprisoned following his release in July 2000. He also asserted that he would be unduly prejudiced by the cumulative nature of introducing several registration documents. The judge determined that the State should not be limited to the forms signed by defendant following his initial conviction. The judge stated:

I don't believe that the intent of Megan's Law and registration requirements forbid or preclude a State, under proving [the] knowingly aspects of the statute, to be limited to one conviction or one time of being released from prison and signing forms and having forms explained to them as to the registration requirements. In other words, to prove knowingly in the way the statute, in the way a jury instruction is, is worded, if somebody, for instance, has four prior convictions for Megan's sex offense violations and four times have been given those forms to sign, I do not believe that the State is or should be precluded from putting before the jury evidence by way of testimony or documents that on four separate occasions a defendant signed forms, had forms explained to him, where his duties and obligations were acknowledged in writing . . . .

To prove knowingly, i.e. a state of mind, to look inside somebody's mind, I do not believe the intent of the law and the statute is to limit the States proofs to one instance if there are, in fact, two, three, four, or five instances where an argument can be made, "Look he signed this form four times. It was explained to him four times, by four different people. Therefore, there is no excuse for him not registering annually."

The judge decided that under N.J.R.E. 403, there was no need to mention the fact that defendant was subsequently convicted and he further sanitized the documents to exclude references to sexual offender. The State also agreed to introduce Scheese as an employee of the State rather than a corrections officer.

On appeal, defendant contends that the trial judge erred in denying his motion for new trial. At oral argument on his motion for a new trial, defendant argued, as he does on appeal, that he was unduly prejudiced by the testimony of two corrections officers, which effectively informed the jury that defendant had been incarcerated in state prison on two occasions. He focuses on Scheese's reference to inmates and the Department of Corrections form used by her.

Defendant's subsequent registrations were relevant to show that defendant knew he was required to verify his address. N.J.R.E. 401. The trial judge appropriately exercised his discretion under N.J.R.E. 403 in deciding to admit the multiple times defendant registered and acknowledged in writing his understanding that he was required to register. We are also satisfied that Scheese's isolated reference to inmates was not sufficiently egregious to deprive defendant of a fair trial. R. 2:10-2. Moreover, the judge appropriate sanitized the Department of Corrections documents. There was no direct reference to defendant's re-incarceration or any evidence that he was convicted of other crimes.

Prior to the commencement of trial, defendant moved to dismiss the indictment, asserting that prosecutor's failure to answer the subsequent grand jury inquiry infringed on the independence of the grand jury. The prosecutor countered, advising the judge that the first time the question was asked it was answered. The prosecutor indicated that the question was not answered the second time because defendant was incarcerated. Instead, the prosecutor pointed out that the State screened the question to avoid prejudicing defendant.

On appeal, defendant argues that the judge erred in denying his motion because the prosecutor "blatant[ly] withheld exculpatory evidence." The purposes of the grand jury are to bring the guilty to trial and "to 'protect . . . the innocent from unfounded prosecution.'" State v. Hogan, 144 N.J. 216, 227 (1996) (quoting State v. Murphy, 110 N.J. 20, 29 (1988)). "Whether an indictment should be dismissed or quashed lies within the discretion of the trial court. Such discretion should not be exercised except on 'the clearest and plainest ground' and an indictment should stand 'unless it is palpably defective.'" State v. Warmbrun, 277 N.J. Super. 51, 59-60 (App. Div. 1994), certif. denied, 140 N.J. 277 (1995) (quoting State v. New Jersey Trade Waste Ass'n, 96 N.J. 8, 18-19 (1984). On appeal, the trial judge's exercise of discretion should not be disturbed "unless it has been clearly abused." State v. Weleck, 10 N.J. 355, 364 (1952).

Here, the trial judge correctly found that the question did not go to the elements of the offense and that the prosecutor's answer was intended to protect, not harm, defendant. Simply stated, there was no prosecutorial misconduct. Defendant's assertion that the State "blatantly" withheld exculpatory information lacks factual support. Defendant does not state with any degree of specificity what exculpatory information was omitted. Where an issue is not briefed beyond conclusory statements by the brief writer, we will not consider it. Miller v. Reis, 189 N.J. Super. 437, 441 (App. Div. 1983). Even if one could say the State's response to the grand jury inquiry was improper, which it was not, the supervening guilty verdict renders any such impropriety harmless. State v. Lee, 211 N.J. Super 590, 599-600 (App. Div. 1986).

 
Finally, defendant claims, for the first time on appeal, that the failure to verify his address is insufficient to support a charge of failure to register. Ordinarily, questions not raised below will not be considered on appeal unless they are of sufficient importance to merit appellate review. Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973). While this appeal was pending, however, our Supreme Court, on December 29, 2005, issued its opinion adopting the dissent in State v. Gyori, 373 N.J. Super. 559 (App. Div. 2004), holding that the failure to verify one's address, pursuant to N.J.S.A. 2C:7-2e is not itself a separate fourth-degree crime as is failure to register, re-register, or notify law enforcement of a change in address in accordance with N.J.S.A. 2C:7-2a. State v. Gyori, ___ N.J. ___ (2005). Because the proofs here were confined to defendant's failure to verify his address at 219 Oriental Avenue in Atlantic City, we are constrained to reverse. Accordingly, we need not address defendant's contention that his sentence, beyond the presumptive term, violated his Sixth Amendment jury trial guarantee, thus requiring a remand under Natale II.

The judgment of conviction is reversed.

Defendant was incarcerated as a result of a prior conviction for failure to register in Egg Harbor on March 14, 2002.

State v. Natale (Natale II), 184 N.J. 458 (2005).

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A-1882-04T4

 

January 30, 2006