STATE OF NEW JERSEY v. JOSEPHUS NYEMA

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3347-05T43347-05T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JOSEPHUS NYEMA,

Defendant-Appellant.

______________________________________________________________

 

Submitted October 29, 2007 - Decided

Before Judges Lintner, Graves and Sabatino.

On appeal from Superior Court of New Jersey,

Law Division, Mercer County, Indictment No.

04-10-0715.

Yvonne Smith Segars, Public Defender, attorney

for appellant (Gregory P. Jordan, Designated

Counsel, of counsel and on the brief).

Joseph L. Bocchini, Jr., Mercer County

Prosecutor, attorney for respondent (Dorothy

Hersh, Assistant Prosecutor, of counsel and

on the brief).

PER CURIAM

Following a jury trial, defendant Josephus Nyema was convicted of third-degree forgery, N.J.S.A. 2C:21-1(a)(3) (count one), and fourth-degree falsifying or tampering with records, N.J.S.A. 2C:21-4(a) (count two). At the sentencing hearing on August 26, 2005, count two was merged into count one and defendant was sentenced to a three-year term of probation conditioned upon obtaining and maintaining full-time employment. In a subsequent proceeding, the court granted the State's motion, pursuant to N.J.S.A. 2C:51-2, for forfeiture of defendant's public employment.

On appeal, defendant presents the following arguments:

POINT I

THE TRIAL COURT ERRED IN ALLOWING THE PROSECUTOR'S REMARKS DURING HIS SUMMATION WHICH WERE IMPROPER AND DENIED THE DEFENDANT A FAIR TRIAL; A REVERSAL IS WARRANTED[.]

POINT II

THE TRIAL COURT ERRED BY NOT ASSURING THAT DEFENSE COUNSEL ORDERED THE GRAND JURY TRANSCRIPT SO THAT DEFENSE COUNSEL COULD HAVE FILED A MOTION TO DISMISS BASED UPON THE PRESENTATION TO THE GRAND JURY AND COULD HAVE USED THE TRANSCRIPT FOR TRIAL PREPARATION[.]

POINT III

THE TRIAL COURT ERRED BY NOT ASSURING THAT DEFENDANT WAS TOLD HE COULD LOSE HIS JOB IF FOUND GUILTY; A PLEA NEGOTIATION COULD HAVE BEEN REACHED WHICH INCLUDED THE MAINTENANCE OF HIS POSITION[.]

POINT IV

THE TRIAL COURT ERRED IN ADMITTING THE DOCUMENTS WHICH WERE THE SUBJECT OF THE INDICTMENT[.]

POINT V

THE TRIAL COURT ERRED DURING THE VOIR DIRE OF THE JURY PANEL BY NOT SPECIFICALLY ASKING THE PANEL WHETHER THEY WOULD TREAT THE TESTIMONY OF A JUDGE MORE OR LESS FAVORABLY[.]

Based on our review of the record and the applicable law, we conclude that defendant's arguments are without sufficient merit to warrant extended discussion. R. 2:11-3(e)(2). Nonetheless, after noting the key facts, we will comment briefly on each point raised.

The facts of this case are straightforward and uncomplicated. After defendant filed a civil lawsuit against the New Jersey Department of Corrections (DOC), the case went to mediation. Deputy Attorney General Saju Mathew, the attorney for the DOC, testified that defendant's case was resolved through mediation:

Q. What happened at the mediation?

A. The mediation was scheduled at the mediator's office. It was a Mr. Leeds, I believe. I went there, along with a representative from the Department of Corrections, Ms. Meyer-Mahoney, and Mr. Nyema was there along with an attorney representing him. And, in essence, the five of us would meet in that conference room, and the mediator worked out a resolution eventually.

Q. What was the resolution that the mediator worked out?

A. The case against the Department of Corrections was settled for $2,500.

Q. Now, when you say was settled, what does that mean?

A. Settled means that all parties came to an agreement that they accepted that the case would be settled, and that he would withdraw his case that he had filed in court, and that the Department of Corrections would pay Mr. Nyema $2,500.

Q. Who agreed specifically to the $2,500?

A. Mr. Nyema.

Q. Was he present?

A. Yes, he was.

Q. And you heard him agree to it?

A. Yes. We were all in the same room.

Q. Getting back to the mediation, the figure $18,500, was that ever offered by the [S]tate?

A. No, it was not.

Q. Do you remember receiving the release forms from this case?

A. Yes. I drafted the release forms.

Q. I show you S-1 in evidence. Do you recognize that?

A. Yes, I do.

Q. And what is that?

A. This is a release, or we call it a settlement agreement. And, in essence, what we do is, we state who the parties are, what the name of the case is, the docket number, and then what is being agreed upon which is in this case it says, specifically paragraph 3, that Mr. Nyema is being paid a total of $2,500, and all the terms are bound by the contract, and those kinds of things are written in there.

I drafted it, because as you can see on the first page, it says by Saju Mathew, my phone number and my information is there. And then this was submitted by my office to Mr. Nyema's attorney, Mr. Gantner. And it was executed by them, it states here December 17, 2001, signed and then returned back to me.

Q. Okay. Now, I would ask you to read S-1 in evidence to yourself, and after you read it, to tell the [c]ourt if that's the document that you actually drafted.

A. Yes, it is.

Q. And you're sure that was the document that you personally drafted?

A. Yes.

Mathew also testified that he received a copy of defendant's notice of motion to vacate the settlement in February 2004. According to Mathew, defendant's motion, which was heard by Judge Smithson on March 5, 2004, contained an "inaccurate" release signed by defendant that was similar to the release he prepared; however, the amount of the settlement had been changed from $2,500 to $18,500.

Defendant testified on his own behalf, and he denied that he agreed to settle his case for $2,500:

Q. And you admit to mailing this packet not only to the [c]ourt where it eventually got to Judge Smithson's chambers, but you also admit to mailing it to the deputy attorney general, correct?

A. Yes.

Q. And that was Saju Mathew. But, again, it is your testimony that you did not change the document from $2,500 to $18,500?

A. I did not change it, the figure.

Q. Do you know how the document got changed from $2,500 to $18,500?

A. I don't know.

Q. But it is your testimony that you never agreed to a settlement of $2,500?

A. I never agreed to any settlement.

Q. You never agreed to any settlement?

A. $2,500. $2,500. I did not agree to settle the case for $2,500.

Q. Now, you admit to signing all the documents that you sent to the [c]ourt, correct?

A. Yes, I did.

Q. And you further admit that the document you sent to the [c]ourt, S-3 in front of you, in the release, the amount is $18,500; is that correct?

A. Yes, that is the amount that was in the settlement agreement that I signed.

Q. Okay. And you're testifying that you signed?

A. Yes.

Q. And that is what you sent to the [c]ourt, the settlement agreement for $18,500?

A. That is what I sent to the [c]ourt, and I ask the [c]ourt to vacate.

During summations, defense counsel stressed that defendant's notice of motion was to "vacate the settlement," and he argued to the jury that there was no proof of an intent to defraud when defendant submitted his motion to the court. On the other hand, the prosecutor told the jury that defendant had submitted a "fake release" to the court with the wrong amount on it because he was trying to "get a little more. It was easy the first time. And he admitted to keeping the money."

We first address defendant's claim that improper comments during the prosecution's summation prevented him from receiving a fair trial. Defendant contends that the following statements by the prosecutor were improper:

And then Mr. Nyema took the stand and, ladies and gentlemen, that is the best evidence the [S]tate has because remember, if you believe somebody is lying, don't just disregard what they tell you, take the opposite. For instance, if I were to tell you a traffic light was green and you believed I was lying, you can make the jump that the traffic light was red or yellow. Don't just disregard what Mr. Nyema said if you don't believe he is telling the truth, use the opposite.

. . . .

The lies go on and on. And it's your job to assess whether or not he was telling the truth. When you go back into that jury room, if you don't believe what he said, then believe the opposite.

Defendant claims these statements were "misleading," and contrary to the "false in one, false in all charge which the court gave the jury." Defendant also claims the prosecutor "denigrated the defense" by stating: "Well, I will agree with one thing that [defense counsel] says, I do have a blow-up of S-1 and S-2. Other than that, there's, in my opinion, not much truth or validity to [defense counsel's] argument." In addition, defendant argues that his judgment of conviction should be reversed because the "prosecutor stated his belief in the defendant's guilt based on matters not in evidence." We do not find these arguments persuasive.

"Prosecutors are afforded considerable leeway in closing arguments as long as their comments are reasonably related to the scope of the evidence presented." State v. Frost, 158 N.J. 76, 82 (1999); see also State v. Harris, 141 N.J. 525, 559 (1995); State v. Williams, 113 N.J. 393, 447 (1988). However, "[t]he primary duty of a prosecutor is not to obtain convictions, but to see that justice is done." State v. Ramseur, 106 N.J. 123, 320 (1987). Accordingly, "'[i]t is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.'" State v. Farrell, 61 N.J. 99, 105 (1972) (quoting Berger v. United States, 295 U.S. 78, 88, 55 S. Ct. 629, 633, 79 L. Ed. 1314, 1321 (1935)). "To justify reversal, 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." State v. Timmendequas, 161 N.J. 515, 575 (1999) (quoting Williams, supra, 113 N.J. at 452), cert. denied, 534 U.S. 858, 122 S. Ct. 136, 151 L. Ed. 2d 89 (2001).

In evaluating the impact of the prosecutor's allegedly improper comments, we have considered the entire case, including defense counsel's decision to refrain from objecting, and the court's instructions to the jurors. Frost, supra, 158 N.J. at 83-84. We conclude that the prosecutor's statements, either individually or collectively, were not "so egregious that [they] deprived the defendant of a fair trial." Id. at 83. While the prosecutor's summation was less than perfect, we are convinced that any error was harmless beyond a reasonable doubt, State v. Macon, 57 N.J. 325, 336 (1971), and was not "clearly capable of producing an unjust result." R. 2:10-2.

We also reject defendant's second argument, in which he claims the trial court erred "by not assuring that defense counsel ordered the grand jury transcript." Defendant has not cited any authority in support of this argument, and we are not aware of any such authority. Moreover, as noted by the State, defendant has failed to substantiate that the grand jury transcript would have benefited his case, and he has failed to establish a reasonable likelihood that the outcome of his trial would have been different if the grand jury transcript had been available.

Defendant next contends that the trial court erred by failing to inform him that "a consequence of going to trial was that he could lose his employment." We do not agree. See, e.g., State v. Heitzman, 209 N.J. Super. 617, 622 (App. Div. 1986) (stating that defendant was not entitled to have his guilty plea set aside "because neither the judge nor anyone else told him he would lose his state job as a collateral consequence if convicted of a crime"), aff'd, 107 N.J. 603 (1987).

We also reject defendant's fourth point, in which he claims that "it was unfair to admit any duplicate [documents] in lieu of the original." As a general rule, a trial court's evidentiary rulings are "entitled to deference absent a showing of an abuse of discretion, i.e., there has been a clear error of judgment." State v. Marrero, 148 N.J. 469, 484 (1997). We are not to substitute our judgment for that of the trial court unless the judge's ruling "was so wide of the mark that a manifest denial of justice resulted." State v. Kelly, 97 N.J. 178, 216 (1984). In this case, we find no abuse of discretion or reversible error.

Finally, defendant argues that the trial court committed reversible error by not specifically asking the jury panel whether they would treat the testimony of Judge Smithson more or less favorably than any other witness. We recognize, of course, that both the Federal and State Constitutions afford a defendant the right to trial by an impartial jury. U.S. Const. amend. VI, XIV; N.J. Const. art. I, 10. In order to ensure jury impartiality, the Court has "emphasized the critical importance of the voir dire in exposing potential and latent bias." State v. Papasavvas, 163 N.J. 565, 584 (2000). "[V]oir dire should be probing, extensive, fair and balanced." Id. at 585.

When the adequacy of the voir dire is challenged, we must review "the totality of the voir dire" to determine whether it was sufficiently probing to lead to the selection of an impartial jury. Williams, supra, 113 N.J. at 411. In this case, all of the prospective witnesses were identified, and the court informed the jury that "the Honorable Andrew J. Smithson, a judge of the Superior Court, like myself," was a potential witness. The court also asked the jury panel whether they would treat the testimony of any witness more or less favorably "because of who they are" or "what they may do for a living":

I read to you the listing of witnesses, and it looks like I had two possible witnesses from the attorney general's office and one, two, three, four different lawyers from different parts of New Jersey, and one detective from the Mercer County Prosecutor's Office listed as potential witnesses.

The question I have for all of you is, would you give more or less weight to the testimony of say attorneys or a detective who is involved with law enforcement, simply because they are involved in the line of work that they're involved in? In other words, would you treat their testimony different than any other witness is really what I'm asking because of who they are and what they may do for a living? Does anybody feel they would treat their testimony more favorably or less favorably? Either way, I don't care.

The State contends that "defense counsel did not request further inquiry in an effort to avoid emphasizing the issue of credibility with respect to Judge Smithson." That may or may not be true. In any event, we are satisfied that there was no reversible error because the voir dire, when viewed in its entirety, was sufficiently probing to ensure an impartial jury.

Affirmed.

 

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A-3347-05T4

November 16, 2007