STATE OF NEW JERSEY v. PAUL CIBELLI, JR

(NOTE: The status of this decision is .)
 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6422-06T46422-06T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

PAUL CIBELLI, JR.,

Defendant-Appellant.

_____________________________________________________________

 

Argued March 17, 2009 - Decided

Before Judges Skillman, Grall and Espinosa.

On appeal from Superior Court of New Jersey,

Law Division, Middlesex County, Indictment No.

06-01-00106.

Paul Casteleiro argued the cause for appellant.

Simon Louis Rosenbach, Assistant Prosecutor, argued the cause for respondent (Bruce J. Kaplan, Middlesex County Prosecutor, attorney; Mr. Rosenbach, of counsel and on the brief).

PER CURIAM

Defendant Paul Cibelli, Jr., was convicted of first degree murder, N.J.S.A. 2C:11-3 (count one), third degree hindering apprehension or prosecution, N.J.S.A. 2C:29-3(b) (count two), and possession of a weapon (construction stapler) for an unlawful purpose, N.J.S.A. 2C:39-4(d) (count three). The court merged count three with count one and sentenced defendant on count one to a fifty-year term with an eighty-five percent period of parole ineligibility pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2, with five years' parole supervision. The court sentenced defendant on count two to a consecutive five-year term.

Tania Silva, defendant's girlfriend, was last seen alive at defendant's home on the night before she planned to leave him. Her body was found five days later at a recycling plant in Pennsylvania. There was, however, no forensic evidence which established that the murder was committed at defendant's home, and the central issue at trial was the identity of the person who killed her.

At trial, defendant's former wife was permitted to testify that, seven years earlier, defendant had threatened to kill her if she left him and that her body would never be found. The State also presented hearsay evidence, which it now concedes was inadmissible, for the purpose of showing that defendant had been untruthful in a statement to police, a violation of defendant's Sixth Amendment right to confront the witnesses against him. We conclude that the trial court abused its discretion in admitting this evidence and that these errors had the clear capacity to bring about an unjust result. Moreover, the potential for prejudice inherent in each of these errors was exploited in the prosecutor's arguments in summation. Accordingly, we reverse defendant's conviction and remand for a new trial. We affirm the trial court's denial of defendant's motion to suppress evidence.

In April 2005, defendant and Silva moved into the home of defendant's father, Paul Cibelli ("Cibelli"), in South Plainfield. By July 2005, the relationship between defendant and Silva became strained. Silva complained to her stepmother, Elvira Silva, that defendant was trying to control her and also complained about the relationship to her boss, Lawrence Dondero, co-workers, Anya Allara and Arlisa Smith, a classmate, Maggie Vargas, and a friend, Fernando Barrientos.

In late summer or early fall, Silva ended her relationship with defendant. She located an apartment in Monroe Township on October 6, 2005, and made plans to take the next day as a vacation day so she could move. Silva shared her excitement and her plans with Smith, her stepmother and Barrientos. She asked Barrientos to help her move "right away the next day in the morning." She also asked Barrientos to keep the location of her new apartment "a secret" because she did not plan on telling defendant where she was moving. It was agreed that Barrientos would call Silva the following day to finalize arrangements.

On October 6, 2005, defendant accompanied Silva to a U-Haul rental location in Iselin. Silva took the key for the rental truck that evening because, as she told the U-Haul employee, she wanted to pick the truck up before the office opened at 8:00 a.m. the following day. Silva and defendant arrived home at approximately 7:00 p.m. Defendant, Silva, and Cibelli ate dinner together. Shortly thereafter, Silva told Cibelli that she was moving out in the morning. Defendant and Silva carried boxes and other items to the garage and to Silva's car until approximately 1:00 a.m., when one of them told Cibelli that they were going to bed. With the house secured for the night, Cibelli retired to his bedroom on the first floor where he slept through the night, undisturbed. This was the last time anyone other than defendant spoke to Silva or saw her alive.

On the following morning at approximately 6:30 a.m., Cibelli noticed that defendant's and Silva's cars were parked in front of the house when he left to buy items for breakfast. He did not see either of them and saw no signs of an intruder or a struggle within the house. When Cibelli returned, he asked defendant if Silva was awake. Defendant responded, "Tania's not here. She's not around," and he told Cibelli he did not know where Silva was.

A number of people tried unsuccessfully to reach Silva on her cellphone throughout that morning: her boss, Barrientos, the U-Haul employee and her new landlord. In response to one call, a man answered Silva's cellphone, stated that he would pass the message along and hung up. Defendant told Barrientos and another friend who came to help Silva move as well as the two co-workers who came to the residence that he did not know where Silva was and had not seen her since the prior evening. He suggested to Barrientos that Silva may have gone to work. To her co-workers, he suggested that she might have left the house to smoke a cigarette, as smoking was not allowed in the house. He admitted to her co-workers that her cell phone, keys and purse were still in the house. Silva's friends and co-workers met at the South Plainfield Police Department to file a missing persons report.

During the course of the day, three pairs of police officers from the South Plainfield Police Department arrived at the house at different times in response to the missing persons report. Defendant denied any knowledge of Silva's whereabouts to each of them. He stated that he had last seen her at about 1:00 a.m., when he finished helping her pack and went to bed. Officer Robert Rogers testified that defendant did not "seem too upset about anything." Defendant stated that Silva's cell phone and purse were still in the house and gave the officers permission to look for her in the residence. He suggested that she might have gone for a walk, although he noted she had "never done that before."

The officers searched the house twice, walked around the exterior and searched Silva's vehicle. They found no signs of a struggle or evidence of blood. Defendant pointed out that all of Silva's shoes were in the house. Several black plastic bags with red drawstring ties, filled with her clothes, were recovered from Silva's car. The police also took possession of Silva's purse, which contained her wallet, checkbook, driver's license, credit cards, work and school identification cards, cell phone, a Drug Fair receipt for "Glad" garbage bags and the U-Haul truck rental contract.

Defendant told Detectives Gene Bataille and James Foran that he had met Silva at the YMCA the prior evening and then accompanied her to a U-Haul rental facility in Iselin. Bataille asked defendant to come to headquarters to further the investigation. Defendant agreed and asked the detectives to contact George Graves, a friend who was an FBI agent. Although defendant went to headquarters with Graves later that afternoon, he became angry after waiting for an hour for Bataille and left.

On the following day, October 8, 2005, defendant made purchases of an over-the-counter sleep medication, Advil, and Nytol, and did not return home that night. Cibelli notified the police and filed a missing persons report.

At approximately 9:30 a.m. on October 9, 2005, Sergeant Donald Lapp, of the New Paltz, New York Police Department, received a report that a man was running in the hallway of the Super 8 motel with no clothes on, and that the management wanted him removed from the premises. Lapp and Keith Lewis, another New Paltz police officer, knocked on the door of room 220. Defendant opened the door, wearing a towel wrapped around his waist. Lapp testified that defendant seemed "disorientated, confused, just kind of out of it." He was "babbling" that he was in New Paltz to look "at foliage" and did not make sense. The room was a mess. There was human excrement smeared on the bed and on the wall above the bed. The officers asked defendant to gather his things and brought him to the motel desk to settle his account. At this point, the officers were considering having defendant evaluated by a psychiatrist and believed that he was unfit to drive. When they arrived at defendant's vehicle, they asked him for his car keys. Defendant told the officers he might have left his keys in a backpack in the motel room.

Lewis returned to the room and retrieved a backpack belonging to defendant. The officer searched the backpack, without defendant's consent, and found defendant's car keys, together with a legal pad that contained a "Last Will & Testament," in which defendant described how he wanted to be buried, and three letters to his daughters, his father, and "George." In the letter to Cibelli, defendant wrote "[p]lease pray for me & Tania." Lapp decided to send defendant by ambulance to a hospital in Kingston, New York for a psychiatric evaluation, and defendant agreed to undergo the examination.

At approximately 2:00 p.m. that afternoon, Lapp learned that missing persons reports had been filed in South Plainfield for defendant and Silva. After speaking to the South Plainfield detectives, he returned to the motel with another detective. They retrieved a note that said, "When I am found please call George Graves first." The officers arrested defendant on a charge of public lewdness to "hold" defendant in custody until the South Plainfield police arrived.

On October 12, 2005, Silva's body was found in three black plastic garbage bags at a recycling plant in Northeast Philadelphia. The driver who delivered the bags containing Silva's body had picked up recyclables from dumpsters at various locations between Philadelphia and Morrisville, Pennsylvania and compacted the load after every pick-up. The last stop on the route that day was in Morrisville, a fifty-five minute drive from defendant's home.

The black plastic garbage bags in which Silva's body was found tested positive for the presence of blood. Her head was in a black plastic garbage bag, tied with red drawstring and sealed with duct tape. Her hands were secured behind her back with duct tape, and her legs were bent at the knees with her feet against her buttocks. She was wearing only a gray Oxford University sweatshirt and a bracelet.

The bags also contained a number of items that were later associated with defendant or his residence. A Bostitch H30 hammer stapler, identified by George Graves as defendant's, tested positive for the presence of Silva's blood. A large yellow bath towel bore a pubic hair that, according to mitochondrial DNA testing, belonged to defendant. DNA testing showed that a yellow tee-shirt with the logo "Corona Extra Cancun" was stained with Silva's blood. In the subsequent search of the Cibelli residence, there were photographs of defendant in a similar tee-shirt but the tee-shirt itself was not in the house. A small blue hand towel and a large blue bath towel with the brand name "Bathroom Basics" matched towels found in the Cibelli residence. Among the other items found in the bag was a wooden dowel. No shoes were found on Silva or in the bag.

The pathologists called by the State and defendant agreed that the cause of death was asphyxiation by manual strangulation. Edward Chmara, the forensic pathologist with the Philadephia Medical Examiner's Office who conducted the autopsy, described the condition of the body as "quite decomposed" and said it was consistent with Silva having last been seen on October 7, 2005. Chmara further testified that Silva had suffered multiple injuries, some of which had been inflicted before her death and some thereafter, presumably while her body was being crushed in the recycling truck. Chmara identified a number of injuries as occurring before Silva's death: a laceration in an L-shaped pattern above her right eyebrow, which, Chmara stated, was consistent with being struck by the Bostitch stapler; multiple abrasions on her hands and forearms, characteristic of defensive injuries; a left clavicular fracture; and a blunt force injury below her right eye. There was also a two-and-one-eighth inch laceration on the crown of her head which would have caused a substantial amount of bleeding if inflicted before Silva's death.

Nicholas Petraco, defendant's expert in crime scene analysis and trace evidence, testified that because there had been a "very violent struggle," "lots of blood" would have been detectable at the Cibelli residence if Silva had been murdered there.

For two days after the body was found, law enforcement officers conducted a search of the Cibelli residence pursuant to a search warrant. Although thorough, the search was hampered by heavy rain. There was no evidence of forced entry. Despite the use of sophisticated detection methods, no evidence of blood was found anywhere within the residence or in the Cibelli vehicles. No forensic evidence was obtained to confirm that a crime had been committed in the residence or anywhere in the yard. However, several items were removed from the residence which had a nexus to Silva's murder. In addition to the towels and photograph of defendant in a yellow "Corona Extra Cancun" tee-shirt like that found with Silva's body and stained with her blood, the officers recovered a sheath that the Bostitch stapler fit into and boxes of garbage bags that were similar both to the bag wrapped around Silva's head and to the four bags in which her body had been placed.

Defendant filed motions in limine to suppress evidence recovered from his backpack, to exclude testimony from his ex-wife that he had threatened her and to exclude statements made by Silva regarding her relationship with defendant. After an evidentiary hearing, the court denied the motion to suppress, granted defendant's motion to exclude some of Silva's statements and denied the remainder of the relief sought.

At trial, Michelle Cibelli testified that she and defendant were married in 1984, separated in 2003, and divorced in 2004. On direct examination, Ms. Cibelli testified in response to leading questions as follows:

Q. Did the defendant ever threaten to kill you if you left him?

A. Yes.

Q. And that if you did and he killed you that they would never find your body?

A. Yes.

Q. How often did he render that threat to you?

A. I don't have a number of times.

Q. More than once?

A. Yes.

Q. Repeatedly? More than five times?

A. Yes.

On re-direct examination, Ms. Cibelli was asked what she had told her mother about these threats. She said, "I told my mother that I was not suicidal, I would never leave my children with him, and that if something happened to me he did it and to come look for me because I didn't want to be in a swamp somewhere."

Defendant raises the following issues on appeal:

POINT ONE

THE MISCONDUCT OF THE PROSECUTOR DURING SUMMATION DEPRIVED THE DEFENDANT OF HIS RIGHT TO A FAIR TRIAL AND DUE PROCESS OF LAW UNDER BOTH THE UNITED STATES AND NEW JERSEY CONSTITUTIONS (Partially raised).

POINT TWO

THE EVIDENCE WAS LEGALLY INSUFFICIENT AND THE TRIAL JUDGE ERRED IN DENYING THE DEFENDANT'S MOTION FOR JUDGMENT OF ACQUITTAL.

POINT THREE

THE CLOSING OF THE COURTOOM TO THE PUBLIC AND THE DEFENDANT VIOLATED THE DEFENDANT'S RIGHT TO A PUBLIC TRIAL, THE PUBLIC'S RIGHT TO ATTEND THE TRIAL, AND THE DEFENDANT'S RIGHT TO BE PRESENT AT ALL STAGES OF HIS TRIAL, UNDER BOTH THE UNITED STATES AND NEW JERSEY CONSTITUTIONS AND RULE 3:16, MANDATING REVERSAL OF THE DEFENDANT'S CONVICTIONS.

POINT FOUR

THE ADMISSION OF HEARSAY TESTIMONY RELATING TO THE DEFENDANT'S ALLEGED CONDUCT IN THE NEW PALTZ MOTEL AND HIS ALLEGED LIE TO THE POLICE IN SAYING HE MET THE DECEDENT AT THE YMCA CONSTITUTED INADMISSIBLE HEARSAY AND VIOLATED THE DEFENDANT'S CONFRONTATION RIGHTS UNDER THE SIXTH AMENDMENT OF THE U.S. CONSTITUTION AND ARTICLE 1, PARAGRAPH 10 OF THE CONSTITUTION OF NEW JERSEY (Partially raised).

POINT FIVE

THE ADMISSION OF OTHER CRIME EVIDENCE IN THE FORM OF THE TESTIMONY OF MICHELLE CIBELLI, AND/OR SERGEANT DONALD LAPP AND DETECTIVE DAVID DUGATKIN DEPRIVED THE DEFENDANT OF HIS RIGHT TO A FAIR TRIAL.

POINT SIX

THE ADMISSION OF EVIDENCE OF THE DEFENDANT'S SILENCE AT POLICE HEADQUARTERS VIOLATED THE DEFENDANT'S RIGHT AGAINST SELF-INCRIMINATION.

POINT SEVEN

THE WARRANTLESS SEARCH AND SEIZURE OF THE DEFENDANT'S BACKPACK CONTAINING HIS WRITINGS VIOLATED HIS RIGHTS AND THE TRIAL COURT ERRED IN DENYING HIS MOTION TO SUPPRESS.

POINT EIGHT

THE CUMULATIVE EFFECT OF THE ERRORS IN THE TRIAL COURT DENIED THE DEFENDANT A FAIR TRIAL.

Our review of these contentions leads us to conclude that the trial court abused its discretion in admitting certain evidence, that these errors were exacerbated by the prosecutor's arguments in summation, and therefore a reversal of defendant's conviction is required.

I.

We turn first to defendant's argument regarding the introduction of other crimes evidence. Defendant contends that the court erred in permitting his ex-wife to testify that he had threatened that he would kill her if she left him and that her body would never be found. After reviewing the record, we conclude that the court abused its discretion in permitting this evidence, State v. Barden, 195 N.J. 375, 390-91 (2008), and that, as a result, defendant's convictions must be reversed.

N.J.R.E. 404(b) provides:

[E]vidence of other crimes, wrongs or acts is not admissible to prove the disposition of a person in order to show that such person acted in conformity therewith. Such evidence may be admitted for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident when such matters are relevant to a material issue in dispute.

The trial court conducted a hearing to determine the admissibility of the proffered other crimes evidence. The determination whether such evidence is properly admissible is guided by the four-part test set forth in State v. Cofield, 127 N.J. 328, 338 (1992):

1. The evidence of the other crime must be admissible as relevant to a material issue;

2. It must be similar in kind and reasonably close in time to the offense charged;

3. The evidence of the other crime must be clear and convincing; and

4. The probative value of the evidence must not be outweighed by its apparent prejudice.

In applying the Cofield test, the trial court found that the first factor was satisfied because defendant's threat to kill Michelle if she left "demonstrates [an] indication of similar threats in this case, where Tania was leaving within a matter of hours, that there was this pre-formulated plan, and that the evidence is also relevant to intent. So, it meets factor number one as to being relevant." As to the second factor, the court found the threats were "[s]imilar in kind and reasonably close in time because the threats . . . could have been as late as 1998, only seven years before the murder of Tania Silva." The court found the third factor satisfied as well: "Michelle Cibelli's testimony was extremely credible, and that evidence is clear and convincing." Finally, the court made the following comment regarding the fourth factor, "[T]he court finds that the probative value of this evidence is not outweighed by the danger of undue prejudice and thus is admissible."

We defer to the trial court's findings as to Michelle Cibelli's credibility, State v. Locurto, 157 N.J. 463 (1999), and the conclusion that the evidence of the threats was, therefore, clear and convincing. However, the remainder of the trial court's analysis was flawed.

In evaluating the first factor, the court misapplied the law in determining that the legally permitted purposes of "plan" and "intent" were material issues here.

As noted, the trial court found that the earlier threats demonstrated that "there was this pre-formulated plan." However, "plan" as used in N.J.R.E. 404(b) is not designed to permit the introduction of other crimes evidence to prove a "plan" in the sense that the indicted offense was premeditated. "Plan" refers instead to a continuing scheme that includes both the indicted offense and the prior conduct. To admit other crimes evidence as probative of a "plan," the evidence must prove "the existence of an integrated plan, of which the other crimes and the indicted offense are components." State v. Stevens, 115 N.J. 289, 305-06 (1989); see also State v. Louf, 64 N.J. 172, 178 (1973) (holding "plan" exception applicable when other crimes evidence "tends to establish the existence of a larger continuing plan of which the crime on trial is a part"); State v. Lumumba, 253 N.J. Super. 375, 387 (App. Div. 1992). There was no evidence here that the threats to Michelle and the murder of Tania were components of any larger, continuing plan. The trial court's conclusion that the proffered evidence tended to prove the existence of a plan for purposes of N.J.R.E. 404(b) was, therefore, erroneous.

The trial court also found that the evidence was admissible as probative of intent. To constitute a basis for the introduction of this evidence, defendant's intent must be "a material issue in dispute." N.J.R.E. 404(b). In State v. Pierro, 355 N.J. Super. 109, 121 n.1 (App. Div. 2002), certif. denied, 175 N.J. 434 (2003), this court observed that intent was not a disputed issue when the suspect's defense was that he was not present at the crime scene. Similarly, the theory of the defense here was that Tania was neither killed at the Cibelli residence nor killed by defendant, not that he killed her by mistake or accident. Moreover, Tania died from strangulation. The medical testimony revealed that she suffered both traumatic and defensive injuries prior to her death. It was the identity of the person who committed the homicide, and not the killer's intent, that was the material issue in this case. Therefore, the testimony regarding defendant's threats to his ex-wife could not be admitted for the purpose of establishing intent.

Although the trial court did not rely upon identity as a basis for the admission of this evidence, the State has suggested on appeal that the evidence of defendant's prior threats was admissible to prove the identity of the killer. The use of other crimes evidence to prove identity is appropriate in "signature crimes, in which some distinct feature about the two crimes clearly allows the jury to make an inference other than propensity to commit crime." State v. Fortin, 162 N.J. 517, 529 (2000) (emphasis added). However, the very argument advanced by the State reveals an impermissible purpose to demonstrate a propensity as the prosecutor argued in his summation. Conceding that identity was the contested aspect of the case, the State argues, "[T]he fact that [defendant] had threatened to kill somebody if that somebody did exactly what Tania did is important, and there was no other way that the State could make that point." The fact that such evidence had the capacity to persuade the jury that defendant killed Silva does not mean that the evidence was properly admissible to prove identity. The distinctive nature of the defendant's criminal behavior in both crimes must meet a high threshold to qualify as "signature" crimes. "[T]he other crimes must bear peculiar, unique, or bizarre similarities." Id. at 530. The Supreme Court has identified the standard for such evidence to be admissible on the issue of identity:

[T]he prior criminal activity with which defendant is identified must be so nearly identical in method as to earmark the crime as defendant's handiwork. The conduct in question must be unusual and distinctive so as to be like a signature, and there must be proof of sufficient facts in both crimes to establish an unusual pattern.

[Id. at 532 (quoting State v. Reldan, 185 N.J. Super. 494, 502-03 (App. Div.), certif. denied, 91 N.J. 543 (1982)).]

While defendant's prior threats had the capacity to convince jurors that he had a propensity to threaten to kill women who left him, his conduct was not so "unusual and distinctive so as to be like a signature." Moreover, the facts regarding the unfulfilled threats to defendant's former wife and the murder of Tania Silva are too dissimilar to establish a signature pattern of criminal conduct. Therefore, this evidence would not have been admissible to prove identity pursuant to N.J.R.E. 404(b).

As to the second factor, the threats were made to a person unrelated to the homicide, approximately seven years earlier, within the context of a divorce that would cause the defendant to be separated from his children. Therefore, the threats were neither similar in kind to the offense charged nor reasonably close in time. See State v. Sanders, 320 N.J. Super. 574, 580-82 (App. Div. 1999), aff'd o.b., 163 N.J. 2 (2000).

Finally, since the other crimes evidence lacked any legitimate probative value, the trial court's conclusion that such value was not outweighed by any prejudice to the defendant was erroneous. "Other-crimes evidence is considered highly prejudicial," State v. Vallejo, 198 N.J. 122, 133 (2009), having "a unique tendency to turn a jury against the defendant." Stevens, supra, 115 N.J. at 302; State v. Hernandez, 334 N.J. Super. 264, 269-70 (App. Div. 2000), aff'd as modified, 170 N.J. 106 (2001). When the erroneous reliance upon "plan" and "intent" is set aside, the court's reasoning reveals that it found the purported similarity between the threats and the circumstances of the homicide to be persuasive in admitting this evidence. The danger to be guarded against here was that this similarity would be used by the jury for the prohibited purpose: to show that defendant was predisposed to kill women who dared to leave him. This, in fact, was the argument made by the prosecutor in summation:

The defendant [did] to Tania what he had previously threatened to do to another woman who had thoughts about leaving him, Michelle, his former wife. . . . The defendant told Michelle if you ever think about leaving I will kill you and they will never find your body. And what the defendant threatened to do to Michelle is what he did to Tania . . . .

In reviewing a prosecutor's argument that a defendant's similar prior acts demonstrated "just the way [the defendant] operates," the Supreme Court commented, "If that is not an allusion to propensity, then we do not know what would be." State v. G.V., 162 N.J. 252, 260 (2000). The same can be said here.

We therefore conclude that the trial court made a clear error in judgment in evaluating and weighing the Cofield factors. Once admitted, the evidence of defendant's threats to his ex-wife did not merely have a potential for prejudice; the evidence was actually used to persuade the jury that defendant was predisposed to kill women who left him and acted in conformity with that predisposition, a use expressly prohibited by N.J.R.E. 404(b). Although the trial court gave a limiting instruction, the prejudice that resulted from the introduction of this evidence requires a new trial.

Our conclusion that a new trial is required is further supported by additional errors in the trial that had the capacity to bring about an unjust result.

II.

When interviewed, defendant stated that he met Tania Silva at the YMCA the evening before her disappearance and the two of them had gone from there to the U-Haul rental location. Bataille testified that during the course of the investigation, he went to the YMCA as part of "checking into stories [defendant] told" to "see if anything doesn't fit." When asked what he found out at the YMCA, Bataille stated that it "was not the case" that defendant and Tania had met there. He began to describe the information a secretary obtained from computer records when defense counsel objected on hearsay grounds. The court initially overruled the objection but, after the witness continued with his answer, there was a second objection, which was sustained. The court then questioned the witness directly:

THE COURT: In other words, your investigation showed that she had not been at the YMCA on October 7, 2005?

THE WITNESS: The initial information given to me she was there when I went there and they checked the computer that was not true.

The State concedes that this testimony constituted inadmissible hearsay evidence and, further, that the prosecutor commented in his summation that the disparity between defendant's statement and the hearsay evidence refuting his statement was evidence of defendant's guilt. Bataille's description of the information received from the YMCA secretary entailed "the use of testimonial statements, taken in the course of police questioning and unchallenged by cross-examination, as a substitute for in-court testimony," and should have been barred pursuant to Crawford v. Washington, 541 U.S. 36, 50-52, 124 S. Ct. 1354, 1363-64, 158 L. Ed. 2d 177, 192-93 (2004). See State ex rel. J.A., 195 N.J. 324, 328 (2008). The admission of this evidence violated defendant's Sixth Amendment right to confront the witnesses against him. Ibid. In his summation, the prosecutor exacerbated this error by using the statement to argue that defendant's statement was false and therefore, evidence of his guilt. Therefore, we reject the State's contention that the error was harmless beyond a reasonable doubt.

III.

Defendant also alleges that the prosecutor's comments during summation constituted prosecutorial misconduct. As we have stated elsewhere in this opinion, in each case in which the admission of evidence constituted an abuse of discretion, the prejudicial impact of the evidence was exacerbated by corresponding arguments made by the prosecutor in summation. Because a new trial is required based upon those errors, we will limit our discussion of the remaining challenges to the prosecutor's summation to the following.

The prosecutor told the jury that it was his "suspicion" that the green wood dowel found in the bag with Silva's body was used to plug her anus to prevent bodily fluids from leaking out. An objection made by defense counsel immediately after the prosecutor began to articulate his suspicion was overruled. We acknowledge that prosecutors are "expected to make vigorous and forceful closing arguments to juries," State v. Frost, 158 N.J. 76, 82 (1999), and "are afforded considerable leeway in that endeavor." State v. Jenewicz, 193 N.J. 440, 471 (2008). However, the prosecutor commits misconduct if he presents a theory of the case that "draws unreasonable inferences from the evidence adduced at trial." State v. Papasavvas, 163 N.J. 565, 616 (2000).

The State did not present any evidence during its case in chief to support an inference that the dowel had been inserted into Silva's anus. In fact, the forensic evidence available to the State indicated that there was no trace evidence on the dowel that might have supported such an inference. Although the pathologist called by defendant conceded on cross-examination that it was possible, based upon the sizes of the anus and the dowel, for the dowel to be inserted into the anus, he added, "It doesn't smell like anus." This evidence did not fairly support the inference that the dowel was inserted into Silva's anus. Given the potential prejudice from suggesting that Silva's body was subjected to this additional indignity after death, the prosecutor should not have shared this "suspicion" with the jury. While this error, standing alone, would have been insufficient to require a reversal, it exacerbated the prejudicial effect of the court's admission of Michelle Cibelli's testimony and the hearsay evidence that Tania Silva had not been at the YMCA the day before her murder.

IV.

Defendant also challenges for the first time on appeal the admission of evidence regarding the events that occurred in New Paltz, New York. Specifically, he contends it was error to admit into evidence the fact that defendant was charged with lewdness and the police officer's testimony that defendant's motel room was soiled with feces on the bed and walls. Defendant contends that a Cofield analysis was required before this evidence could be introduced. There was, however, neither a Cofield analysis nor a limiting instruction as to this evidence. The State contends that this evidence was properly introduced to demonstrate defendant's consciousness of guilt.

On retrial, an analysis of the evidence pursuant to the Cofield factors should be conducted to determine its admissibility. In its analysis, the court should consider the availability of other evidence that can be used to prove a permitted purpose, State v. Jenkins, 178 N.J. 347, 365 (2004), the degree to which the evidence can be sanitized to reduce its inherent prejudice, Barden, supra, 195 N.J. at 390; State v. Collier, 316 N.J. Super. 181, 185 (App. Div. 1998), aff'd o.b., 162 N.J. 27 (1999), and limiting admissibility to those facts reasonably necessary for the probative purpose, State v. Chenique-Puey, 145 N.J. 334, 341-43 (1996); State v. Fortin, 318 N.J. Super. 577, 598 (App. Div. 1999), aff'd, 162 N.J. 517 (2000). If the evidence is deemed admissible, an appropriate limiting instruction should be given. Stevens, supra, 115 N.J. at 304.

V.

Defendant claims that the trial court erred in denying his motion to suppress the seizure of items from his backpack in New Paltz. At the time of the search, the police officers knew nothing of Tania Silva's disappearance and defendant's possible involvement. They were responding to a citizen's complaint regarding a man acting in a bizarre manner. Their own observations and conversation with defendant provided further evidence of irrational behavior and supported their views that they were dealing with someone in need of psychiatric evaluation who posed a danger to himself.

In Brigham City v. Stuart, 547 U.S. 398, 403, 126 S. Ct. 1943, 1947, 164 L. Ed. 2d 650, 657 (2006), the Supreme Court addressed the nature of exigent circumstances "obviating the requirement of a warrant [where there] is a need to assist persons who are seriously injured or threatened with such injury." Noting that "the ultimate touchstone of the Fourth Amendment is 'reasonableness,'" the Court required that need to act to be objectively reasonable. Ibid. Based upon the undisputed facts here, it was objectively reasonable for the officers to conclude that defendant posed a danger to himself, was in imminent need of psychiatric evaluation, and needed their assistance in transporting him to a facility where he would receive such attention. Although the officers' subjective intent was irrelevant to the applicability of this exception, id. at 404-05, 126 S. Ct. at 1948, 164 L. Ed. 2d at 658, the officers' lack of knowledge regarding Silva's murder and their conduct in obtaining medical assistance for defendant supports the conclusion that their actions in responding to what they believed to be an emergent need to assist defendant were objectively reasonable. Therefore, we conclude that the trial court properly denied the motion to suppress. See also People v. Molnar, 774 N.E.2d 738, 740 (N.Y. 2002).

After carefully considering the record and briefs, we are satisfied that defendant's remaining arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).

We affirm the denial of defendant's motion to suppress evidence. We reverse his conviction and remand for a new trial.

At the pretrial hearing, Ms. Cibelli testified that these threats occurred between 1986 and 1998. At trial, she testified that these threats occurred "[t]hroughout the course of our marriage," which lasted from 1986 until their 2003 separation and 2004 divorce.

We assume that defendant's challenges to this evidence as inadmissible hearsay will be addressed as well.

(continued)

(continued)

29

A-6422-06T4

June 12, 2009