STATE OF NEW JERSEY v. VINCENT CORTESE

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5647-04T55647-04T5

STATE OF NEW JERSEY,

Plaintiff-Appellant,

v.

VINCENT CORTESE,

Defendant-Respondent.

___________________________________________________________

 

Submitted May 1, 2006 - Decided June 23, 2006

Before Judges Cuff and Holston, Jr.

On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 213-02-05.

Bruce J. Kaplan, Middlesex County Prosecutor, attorney for appellant (Simon Louis Rosenbach, Assistant Prosecutor, of counsel and on the brief).

Benedict and Altman, attorneys for respondent (Joseph J. Benedict and Philip Nettl, on the brief).

PER CURIAM

The State appeals the June 10, 2005, Law Division Order dismissing without prejudice Middlesex County Indictment No. 213-02-05 charging defendant, Vincent Cortese, with the first-degree attempted murder of Gabriel Rosa (Rosa), contrary to N.J.S.A. 2C:5-1 and N.J.S.A. 2C:11-3a(2)(2) (Count One); second-degree aggravated assault against Rosa, contrary to N.J.S.A. 2C:12-1b(1) (Count Two); and third-degree riot, contrary to N.J.S.A. 2C:33-2a and N.J.S.A. 2C:33-1a(3) (Count Seven), on the basis that the assistant prosecutor (prosecutor) withheld from the grand jury clearly exculpatory evidence directly negating the guilt of defendant. We affirm.

On March 10, 2004, between 8:00 and 8:30 p.m., a brawl involving at least twenty-two students, ages fifteen to eighteen, from Edison Township (Edison) and Highland Park occurred at the Edison High School (EHS) football field. Based on witness statements, the crowd gathered initially to settle a dispute between B.C., a juvenile from Highland Park and Joseph Anis, an eighteen-year-old adult from Edison.

J.Y., age fifteen, defendant, age eighteen, and John Horskey, age eighteen, were among the students who went to the field to observe or participate in the melee that occurred among the students from the two towns. During the fighting, G.Y. of Edison and Rosa of Highland Park were seriously injured. The injuries to Rosa are the focus of this appeal.

According to grand jury testimony from Migna Rosa, Rosa's mother, Rosa was in the hospital from March 10, 2004, until April 5, 2004. He suffered brain damage and evidenced stroke-like symptoms. Initially he could not speak, walk or use the left side of his body. As of the date of Migna Rosa's testimony to the grand jury on May 27, 2004, Rosa remained unable to dress himself.

The Edison police began an investigation to determine who caused the injuries to G.Y. and Rosa. Preliminary interviews revealed the names of twenty-two students who were at the fight, fifteen from Edison and seven from Highland Park. According to the May 27, 2004 grand jury testimony of Edison Detective Shannon, the Edison people who were interviewed stated that they came to the fight with no weapons and that the Highland Park participants had bats and pipes. The Highland Park people denied having weapons and contended the Edison participants had bats and pipes. Words were exchanged between the two groups and then physical fighting began. Rosa knew B.C. and was a participant in the melee.

Anis and J.Y., G.Y.'s younger brother, were both interviewed on March 11, 2004. Both denied hitting anyone or having any knowledge of the attack on Rosa. Anis stated that initially he and B.C. were to appear alone at 8:00 p.m. but both sides brought reinforcements.

Defendant was also interviewed on March 11, 2004. He told police investigators that Rosa took a "run" at him. Defendant stated, "It looked like he was just going to bum rush me and tackle me." "I just stepped back and I punched him and he tripped and fell." When asked if he hit Rosa, defendant replied, "His face, yeah." "Yeah, he just fell in the direction he was running. He just kept and he fell that way."

Defendant then identified Anis and J.Y. as participants in a subsequent attack on Rosa. He stated:

Then Joe Anis and [J.Y.] came up and they were, Joe Anis had a bat and [J.Y.] had a skateboard and they were just hitting, like Joe [Anis] was hitting him like kind of like in his ass I guess and Joe Anis was hitting him in his head and shit. So I went to run back towards the cars and then I was like yo guys let's go, let's go. And they didn't follow me so I went back, and I was yo, let's go and I kind of like grabbed Joe [Anis] and I was like come on and then they started, they just followed me and Joe [Anis] jumped in the CRV with me, [J.Y.] and what I heard was Joe Anis tried to get in his car and dropped his keys or something and the kids were right behind him so he just, he just ran down the street and they smashed up his car and stuff.

The following exchange then took place between Detective Shannon and defendant:

QUESTION: And Joe Anis has a baseball bat and [J.Y.] has a skate board?

ANSWER: Yeah.

QUESTION: And while this kid is on the ground, Joe Anis and [J.Y.] are striking this Spanish kid with the bat and the skateboard. How many times if you can, I know everything happening fast here . . . .

ANSWER: Yeah. It was kind of crazy like I didn't even really know what was going on and like seen him hit him a couple of times and I started running back towards the cars.

QUESTION: Right. So you left, you left Joe Anis and [J.Y.] still beating this kid?

ANSWER: Yeah.

QUESTION: You started running towards the car?

ANSWER: Yeah. Cause I thought they were going to come with me because obviously the kid was stopping. He wasn't going to go anywhere so I thought we were done. And then I went back and they were still doing it and I was like yo, let's go, let's go.

QUESTION: You tried to stop them?

ANSWER: Yeah. And eventually they listened. They came running back with me like into the street.

QUESTION: Okay. You said that you said to them let's go, let's go.

ANSWER: Yeah.

QUESTION: Did you actually say to them, stop hitting him?

ANSWER: Yeah. I was like, yo, let's stop, let's go. The cops are going to come and stuff. And I was like come on and then eventually they stopped and I grabbed [J.Y.] and I just pulled him because I didn't know how else to get him to come. I don't even know if he heard me. It was just crazy.

The police then spoke with Horskey, who drove himself and four other Edison students in his mother's car to the EHS football field to watch the fight. They included Mike Grogan, defendant, G.Y. and J.Y. Horskey stated that after the Highland Park "kids" hit G.Y. and defendant that defendant "yelled to me or I guess yelled out loud for everyone to run. Let's just get out of here."

Horskey continued:

That's when I had seen a pretty large Spanish kid, pretty much just run by without even noticing me. I had heard I guess a grunt or whatever, somebody made some kind of noise and that's when I saw the kid falling down. I had assumed Vince hit him or whatever Vince did and he fell down.

. . . .

Right he had to have hit him or done something for the kid to just like fall down. Vince, I then almost locked eyes with Vince, I looked at Vince and that's when he had just motioned with his hands to just keep going, let's get out of here and he was just pretty much behind me the whole time. He didn't stop. We had ran, finished running around the concession stand, pretty much just ran to the sidewalk. I had sprinted down the sidewalk and in looking back saw just maybe 15 kids standing under the original light where we had first met up. Kinds of just, kids were just running back and forth. Somebody was like on the ground getting up and when I looked back, I looked back again and Vince was behind me jogging but yelling for everybody to let's go. . . .

. . . .

All I saw was Vince hit him and pretty much, I guess Vince hit him and kind of just ran through him, hit him and then just kept going, didn't stop, didn't have anything extra to really do. We had continued running. I ran to the car and when I opened the door and sat down, that's when I looked back at everything. Vince was pretty much to the street by then and he was still pretty much keeping up his jogging pace but then I had seen [J.Y.] pretty much, running pretty fast to catch up with Vince, I guess.

When asked, "Where did you see [J.Y.] running from?" Horskey replied, "The side where we had originally came from, where the Spanish kid was. I'm not sure. I can't account for Joe [Anis'] actions cause I didn't see him but I see him running to the car. Vince and [J.Y.]" Horskey said he could account for defendant's actions because "I did see Vince the whole time." Horskey added, "I never really lost sight [of defendant]. I looked away but he wasn't on the kid, I didn't see him on top of him. He hit him and that was pretty much his part."

As a result of their interview with defendant, the police brought J.Y. back for a second interview. He was informed that he was a suspect with respect to Rosa's injuries but he was not told the contents of defendant's or Horskey's interviews. Nevertheless, J.Y. corroborated defendant's version of events and confirmed Horskey's presence in the area. J.Y. stated that a Highland Park "kid" confronted defendant with a knife, after which, "Vince ran away and like ran towards me and then someone screams, the other "Popo" is coming, so everyone starts running away and a big, like a bigger size, a bigger Spanish kid starts running towards like Chestnut Street and he gets punched and he falls over himself."

The questioning of J.Y. then continued:

QUESTION: Now this big Spanish kid has been identified as Gabriel Rosa, he runs towards Vince Cortese?

ANSWER: [Yes.]

. . . .

QUESTION: Okay and as he is running towards Vince and he approaches him and is in close proximity to Vince, this big Spanish kid gets knocked to the ground, is that correct?

ANSWER: Yes.

QUESTION: Okay, did you see Vince punch him?

ANSWER: I wasn't see him punch him, but and then I had the skateboard in my hands and I picked the skateboard up and I either hit him on his left or right side, I think it was more toward the right side.

QUESTION: At this time, the big Spanish kid is on the ground?

ANSWER: Is on the ground. He was running, he tripped over himself, he is on the ground.

QUESTION: And you have a skateboard?

ANSWER: Uh hmm. I hit him in like in the rib area with the skateboard twice and then I heard, Vince was like come on let's go and I get up and I just stop what I am doing, put the skateboard on my shoulder and start running because kids were chasing us.

. . . .

QUESTION: While he is on the ground and you hit him twice on the side, where is Joe Anis?

ANSWER: Striking the kid.

QUESTION: With what?

ANSWER: It was either a pipe or a bat.

QUESTION: Where on this kid's body was Joe hitting him?

ANSWER: Towards like his shoulder area.

QUESTION: Do you know how many times Joe was hitting him?

ANSWER: I guess it was rapidly.

. . . .

J.Y. then added:

I hit him. I was like filed with rage and anger because I saw my brother get hit, saw a couple of my friends get hit. I was just filled with rage because I couldn't do anything because I was just so scared of what would happen to me because I saw what happened to them. And then I saw that nobody was around, so I was so pissed off that I just lost it and then Vince told me that like people were coming, so he was like come on, come on, come on let's go. So we started running towards the CRV, the Honda CRV.

Anis was indicted for the attack on Rosa for attempted murder, aggravated assault, use of a juvenile to commit an offense, and riot. Defendant was charged with simple assault for striking Rosa. J.Y. faced juvenile charges for his part.

In the course of preparing for his juvenile case, J.Y. was provided with discovery, including all of the police reports and witness statements. It was then that he learned for the first time that defendant had described his involvement in the beating of Rosa. As a result, J.Y. had his mother contact the police to tell them he wanted to change his story about defendant's involvement.

J.Y. thereafter gave a third version of events to the police. In that version, J.Y. alleged that defendant stomped on Rosa's head while Rosa was on the ground being attacked by himself and Anis. He stated that after they ran to the car defendant stated, "he hoped that he killed the kid."

The State called J.Y. before the grand jury in order to seek an indictment of defendant for attempted murder. J.Y. told the grand jurors his third version of events. When he finished, the following exchange occurred between the prosecutor and J.Y.:

PROSECUTOR: When originally the police picked you up and talked to you, you didn't - you didn't talk about Mr. Cortese - about what he had done - what you had just said here right?

J.Y.: No.

PROSECUTOR: Could you tell us why?

J.Y.: Cause I thought he wasn't - I thought he's - I didn't think he told on me at all. So I was like alright I'm not gonna tell on him.

PROSECUTOR: Okay, and then you later find out through your court -

J.Y.: My discovery.

PROSECUTOR: Your court proceeding that he what?

J.Y.: That he told on me.

PROSECUTOR: Alright. And then - and then what happens? How does it you get in touch with us?

J.Y.: My mom wrote a letter to the Prosecutor's Office saying Vince's involvement.

That exchange constituted the State's information to the grand jurors about the circumstances of J.Y. coming forward. The prosecutor did not furnish the grand jury with a transcript or even a synopsis of defendant's second statement with respect to defendant's actions after defendant punched Rosa. Nor did the prosecutor provide a transcript or synopsis of Horskey's statement concerning defendant's actions.

Defendant filed a motion to dismiss the indictment on the ground that the State failed to present clearly exculpatory evidence to the grand jury. On June 10, 2005, Judge Mulvilhill granted defendant's motion, concluding that J.Y.'s second statement and Horskey's statement were clearly exculpatory to defendant and should have been presented to the grand jury. The judge stated:

All right, so we clearly have evidence that was not presented to the Grand Jury, it was exculpatory of Mr. Cortese, even though there is evidence that he punched, a one punch to the victim, on John Horskey's statement that he noticed a large Spanish kid running toward Cortese, Cortese hit Rosa causing him to fall down. After that Cortese and Horskey continued to run towards the car. Horskey noticed Cortese running towards the car while yelling for everyone to go in, that Cortese only hit the kid once; and J.Y., first statement concerning Cortese supports Cortese's statement.

He told the police that Rosa was running towards Cortese when he gets knocked down to the ground and that he, J.Y., began hitting Rosa with a skate board while Anis was hitting the victim with a pipe or bat and then after that J.Y. heard Cortese say let's go.

So, I find that that full picture should have been presented to the Grand Jury in fairness, fundamental fairness, and the motion is granted. The indictment is dismissed without prejudice.

The State contends that it did not withhold exculpatory information because it was not required to present defendant's version at all. The State asserts that this was not a case where there were several witnesses giving one version of events to discredit a much smaller other version of events. Although Horskey's version and J.Y.'s second version are inconsistent with J.Y.'s third version, neither version is necessarily more credible. The State, therefore, argues that Horskey's version is not clearly exculpatory nor does his version directly negate defendant's guilt and thus the grand jury was not misled. We disagree.

The trial court, in evaluating the motion to dismiss, correctly determined that State v. Hogan, 144 N.J. 216 (1996), controlled the court's disposition of the motion. Generally, "'the decision whether to dismiss an indictment lies within the discretion of the trial court[.]'" State v. Mason, 355 N.J. Super. 296, 299 (App. Div. 2002) (quoting Hogan, supra, 144 N.J. at 229). In Mason, we stated that "in the absence of an abuse of that discretion, we will not disturb the determination of the trial court." Id. at 299.

In Hogan, our Supreme Court noted:

[I]n establishing its prima facie case against the accused, the State may not deceive the grand jury or present its evidence in a way that is tantamount to telling the grand jury a "half-truth." Although the grand jury is not the final adjudicator of guilt and innocence, the presence of the right to indictment in the State Constitution indicates that the grand jury was intended to be more than a rubber stamp of the prosecutor's office. Our State Constitution envisions a grand jury that protects persons who are victims of personal animus, partisanship, or inappropriate zeal on the part of a prosecutor.

In order to perform that vital protective function, the grand jury cannot be denied access to evidence that is credible, material, and so clearly exculpatory as to induce a rational grand juror to conclude that the State has not made out a prima facie case against the accused. If evidence of that character is withheld from the grand jury, the prosecutor, in essence, presents a distorted version of the facts and interferes with the grand jury's decision-making function.

[Hogan, supra, 144 N.J. at 236 (citations omitted).]

Accordingly, our Supreme Court held that a prosecutor has a limited duty to introduce such evidence if it "both directly negates the guilt of the accused and is clearly exculpatory." Id. at 237.

We note that out of the twenty-two witnesses interviewed, only three expressed any knowledge of defendant's whereabouts or actions during the fight: (1) defendant himself; (2) J.Y.; and (3) Horskey. All three gave statements that, alone and in combination, exculpated defendant from the crimes of attempted murder, aggravated assault and riot.

The trial court noted as much, and made specific findings that Horskey's and J.Y.'s second statement exculpated defendant. These were discretionary judgments as to the quality and character of the evidence in the State's possession at the time of the grand jury presentation. The judge determined that the "full picture should have been presented to the Grand Jury in fairness, fundamental fairness. . . ."

The judge did not base his ruling on a finding that defendant's own exculpatory statement needed to be presented. Hogan indicates that a defendant's statements tend to be self-serving in general, and ordinarily need not be presented to a grand jury. Id. at 238. We are satisfied, therefore, that the judge correctly limited his decision to the exculpatory nature of Horskey's statement and J.Y.'s second statement. The judge concluded that J.Y.'s second statement should have been read to the grand jury in its entirety, because it exculpated defendant and because by failing to read it the grand jury was given an incomplete account of defendant's role in the assault of Rosa.

Hogan informs that there are two factors to consider in evaluating exculpatory evidence. First, the evidence must directly negate guilt by refuting an element of the crime, and second, the evidence must be clearly exculpatory. Id. at 237.

In his second version of events, J.Y. said the following: (1) defendant hit Rosa once as Rosa took a run at defendant; (2) Rosa then fell on the ground, where he was beaten by J.Y. (with a skateboard) and Anis (with a pipe or a bat); (3) defendant told J.Y. and Anis to stop, and told them that they had to get out of there; and (4) the three of them (defendant, J.Y. and Anis) ran and got into Horskey's Honda CRV. This version, if credible, contradicts J.Y.'s claim in his belated third version of events that defendant "stomped" or "kicked" Rosa. In his second statement, J.Y. precisely describes the beating of Rosa, detailing how he beat Rosa with a skateboard and Anis beat him with a pipe. He specifically recalled defendant being in the vicinity. But the only actions of defendant that J.Y. described were defendant yelling at Anis and him, "Come on, let's go!" That evidence, we are satisfied, directly contradicts J.Y.'s later allegation that defendant kicked Rosa in the head.

The State's theory of attempted murder is that defendant kicked Rosa "with the purpose of causing [death] without further conduct on his part[.]" N.J.S.A. 2C:5-1a(2). That conduct, if it occurred, would fulfill the "act or omission" element of the criminal attempt statute. Because such alleged conduct is the basis for the attempted murder charge, we are satisfied that the judge properly exercised his discretion when he concluded that J.Y.'s second statement and Horskey's statement directly negate an essential element of the offense, thereby satisfying the first prong of Hogan.

The second prong under Hogan is that the evidence must be clearly exculpatory. Hogan, supra, 144 N.J. at 237. "The exculpatory value of the evidence should be analyzed in the context of the nature and source of the evidence, and the strength of the State's case." Ibid. This is a qualitative analysis and allows the prosecutor to evaluate the character of the evidence and disregard evidence that is unreliable or has a strong potential for bias. It is for this reason that defendant's statements can "ordinarily" be disregarded as self-serving. Id. at 238.

Here, J.Y.'s second statement was clearly exculpatory because the first version denied any knowledge of anything that happened to Rosa and the second version accepted responsibility for the beating, and limited defendant's participation to yelling at him to stop and coercing him to run away. The third version was presented to the grand jury without an accurate description of the other two.

Additionally, the second statement was remarkably quite consistent with defendant's statement and Horskey's statement. Detective Shannon testified at the first grand jury session and his testimony was played to the second grand jury as to J.Y.'s second statement. However, Detective Shannon discussed J.Y.'s statement only as it referred to J.Y. and Anis' actions in the incident. Detective Shannon never testified to J.Y.'s second statement attesting to defendant's lack of involvement after the initial punching of Rosa.

The prosecutor had to be aware of J.Y.'s potential motive to fabricate his testimony when he testified to a third version of events involving the attack on Rosa. Therefore, J.Y.'s full recorded second statement to the investigators needed to be presented to the grand jury in order to provide them with a complete record of the investigation uncovered by the police, thereby insuring that the grand jury was not hearing a "half-truth."

In J.Y.'s second statement, he twice stated that, while he and Anis were beating Rosa, defendant was saying "come on, come on, come on, let's go!" Yet J.Y. in his testimony to the grand jury only stated that "someone said the cops were coming." The grand jurors were never informed that J.Y. had previously identified defendant as that someone. Had J.Y.'s full statement been read to the grand jury, it would have corrected a material fact on which the jury had been either misled or at least not fully informed, potentially leaving the grand jury with a misimpression of the facts.

Horskey exculpated defendant and said he watched defendant the whole time. Moreover, he corroborated J.Y.'s second statement, and defendant's only statement, though without the same level of detail regarding what was happening to Rosa. Horskey noted that defendant was within his sight from the initial punch of Rosa to defendant getting in the car and that defendant, therefore, could not have participated in beating Rosa. The judge noted that Horskey's recitation of events was exculpatory of defendant, and that it was not presented to the grand jury.

Horskey's recollection of events, we are satisfied, clearly negates J.Y.'s third statement that defendant kicked Rosa in the head. Therefore, we are convinced that Horskey's statement directly negates an element of the crime and is clearly exculpatory.

The State argues, relying on State v. Cook, 330 N.J. Super. 395 (App. Div.), certif. denied, 165 N.J. 486 (2000), that even if Horskey's and J.Y.'s statements directly negated defendant's guilt, they were not clearly exculpatory. In Cook, however, there were three separate and independent witnesses who identified the defendant as the perpetrator in a murder. One witness tentatively identified someone other than defendant, a man named Hightower. Id. at 408. A final witness initially identified Hightower, but later identified the defendant. Ibid. The trial court denied the defendant's motion to dismiss the indictment on the ground that the prosecutor failed to present the competing identifications. Id. at 410. The defendant was subsequently convicted of murder and robbery by a petit jury. Id. at 411.

We held that "the identifications . . . of Hightower were not 'clearly exculpatory' since they were contradicted by the testimony of three other witnesses who clearly identified defendant as the perpetrator of the murder and robbery." Id. at 410-11. We then affirmed the conviction, finding "no abuse of discretion by the trial judge in light of the strength of the State's case presented to the grand jury and the nature of the exculpatory evidence." Id. at 411. Furthermore, we held that "the finding of guilty beyond a reasonable doubt by the petit jury would render harmless any failure to present the alleged exculpatory evidence to the grand jury." Ibid.

In Cook, the trial court exercised its discretion in denying the motion to dismiss the indictment. Here, the opposite happened: the trial court dismissed the indictment. Both decisions are entitled to great deference, and should only be disturbed upon a showing of abuse of discretion. Moreover, in Cook, any errors in the grand jury presentation were rendered harmless by the petit jury verdict. Here, that has not happened. The trial court dismissed the indictment, and the State appealed. The State's errors in their presentation have never been mitigated by either a subsequent presentation to the grand jury or a jury trial.

Most significant, however, are the substantive differences between this case and Cook. In Cook, the State had three solid eyewitnesses to the defendant's guilt, whereas here, the State's case is more tenuous. The State has a single witness, J.Y., who did not inculpate defendant until the third time he had an opportunity to tell the police his story. Even if the State's theory is correct, it means that J.Y. lied to the police on two separate occasions. Moreover, no other witness has corroborated J.Y.'s third version of the events.

The State had two independent witnesses to defendant's actions when Rosa was beaten. Both said defendant was not involved. That evidence directly negated defendant's guilt and was clearly exculpatory. Only one witness, J.Y., in his third version, testified to defendant striking Rosa. The State has a duty to present clearly exculpatory evidence to a grand jury. We are satisfied that the judge correctly exercised his discretion when he determined that the State was derelict in its duty in not presenting Horskey's statement and the full second version of J.Y.'s statement to the grand jury.

Affirmed.

 

According to witness statements, Grogan never went to the EHS football field and remained in Horskey's mother's car.

The State has not re-presented the case to the grand jury.

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A-5647-04T5

June 23, 2006