STATE OF NEW JERSEY v. ERICK K. KIBUUKA, a/k/a ERIC K. KIBUUKA

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3188-09T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ERICK K. KIBUUKA, a/k/a

ERIC K. KIBUUKA,

Defendant-Appellant.

____________________________

April 1, 2011

 

Submitted: March 2, 2011 - Decided:

 

Before Judges Fisher and Fasciale.

 

On appeal from Superior Court of New Jersey, Law Division, Cape May County, Indictment No. 08-12-00925.

 

Yvonne Smith Segars, Public Defender, attorney for appellant (Abby P. Schwartz, Assistant Deputy Public Defender, of counsel and on the brief).

 

Robert L. Taylor, Cape May County Prosecutor, attorney for respondent (J. Vincent Molitor, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant appeals from his conviction for third-degree defrauding the administration of a drug test, N.J.S.A. 2C:36-10(d). The judge sentenced defendant to five years in state prison. The State concedes that the judge committed plain error by failing to properly charge the jury concerning the elements of the crime and that a new trial is warranted. We agree and reverse.

Defendant was serving probation for a different offense when his probation officer requested that defendant provide a urine sample. The officer testified that defendant entered the bathroom and he observed defendant "dumping something into the urine sample bottle . . . ." The officer then observed that defendant used a different bottle than the one provided by the probation department and that the specimen defendant provided was not warm to the touch. As a result, the officer believed that defendant attempted to defraud the urine test.

Defendant testified at trial that he had a bottle in his pocket that contained water and aspirin. He explained that he went into the bathroom, removed the cap from the bottle the officer provided, and urinated. He stated that the officer questioned him concerning the bottle in defendant's pocket and accused defendant of "trying to fraud the test."

The judge charged the jury by reading N.J.S.A. 2C:36-10(d) and stated:

At this time I will instruct you as to the law. The defendant is charged with violating N.J.S.A. 2C:36-10d. The definition of defrauding the administration of a drug test is a crime and as used in this act defraud the administration of a drug test means to submit a substance that purports to be from a person other than its actual source or purports to have been excreted or collected at a time other than when it was actually excreted or collected or to otherwise engage in conduct intended to produce a false or misleading outcome of a test for the presence of a chemical drug or controlled dangerous substance in the human body. It shall specifically include, but shall not be limited to, the furnishing of urine with a purpose that the urine be submitted for urinalysis as a true specimen of a person. In particular the defendant is charged with subsection D which reads, [a]ny person who knowingly defrauds the administration of a drug test that is administered as a condition of monitoring a person on bail in custody or on parole, probation or pretrial intervention or any other form of supervision administered in connection with a criminal offense or a juvenile delinquency matter would, therefore, be guilty of a crime of the third[-]degree.

In order for the defendant to be found guilty of this offense, defraud the administration of a drug test, you must find that the State has proven beyond a reasonable doubt the following elements, as I indicated, that the defendant was a person on bail or in custody or on parole, probation or pretrial intervention, and that he acted in such a way as to either submit a substance that purports to be from a person other than the actual source or purports to have excreted or collected at a time other than when it was actually excreted or collected or in otherwise engaged in conduct intended to produce a false or misleading outcome of a test for the presence of a chemical drug or controlled dangerous substance.

 

After the completion of the one-day trial, the jury found defendant guilty of the offense. This appeal followed.

On appeal, defendant argues that

POINT I

THE JUDGE'S INSTRUCTIONS ON THE OFFENSE CHARGED LACKED A DEFINITION OF THE MENS REA REQUIRED: KNOWINGLY. FURTHERMORE, WITHIN THE DEFINITION OF THE OFFENSE, THERE IS STRONG LANGUAGE WHICH SUGGESTS THAT THE MENS REA IS PURPOSELY WHICH ALSO WAS NOT DEFINED. THE JURY WAS WITHOUT ANY "ROAD MAP" WITH WHICH TO EVALUATE THE EVIDENCE AND, AS SUCH, DEFENDANT'S RIGHTS TO A FAIR TRIAL AND DUE PROCESS WERE VIOLATED AND THE CONVICTION MUST BE REVERSED. U.S. CONST. AMEND. XIV; N.J. CONST. (1947) ART. I, PARS. 1, 9, 10. (Not Raised Below)

 

POINT II

INADEQUATE JURY INSTRUCTIONS, WHICH FAILED TO EXPLAIN THE LAW WITH REFERENCE TO THE FACTS OF THE CASE AND FAILED TO ADEQUATELY DEFINE DEFRAUD THE ADMINISTRATION OF A DRUG TEST, DEPRIVED DEFENDANT OF DUE PROCESS OF LAW AND THE RIGHT TO A FAIR TRIAL. U.S. CONST. AMEND. XIV; N.J. CONST. (1947) ART. I, PARS. 1, 9, 10. (Not Raised Below)

 

POINT III

THE PROSECUTOR'S COMMENTS DURING SUMMATION WERE IMPROPER AND SO PREJUDICIAL AS TO DENY DEFENDANT A FAIR TRIAL AND REQUIRE THE REVERSAL OF HIS CONVICTIONS. U.S. CONST., AMEND. XIV; N.J. CONST., (1947), ART. 1, 10. (Not Raised Below).

 

It is well settled that appropriate and proper jury charges

are essential in a criminal case to assure a fair trial. State

v. Reddish, 181 N.J. 553, 613 (2004); State v. Green, 86 N.J.

281, 287 (1981). When a defendant identifies an error in the

charge, we must evaluate the charge in its entirety. State v.

Figueroa, 190 N.J. 219, 246 (2007); State v. Wilbely, 63 N.J.

420, 422 (1973).

Although a flawed jury charge is a poor candidate for

rehabilitation or the application of the harmless error rule,

State v. Simon, 79 N.J. 191, 206 (1979), a defendant must still

demonstrate that the error affected the outcome of the jury's

deliberations, State v. Jordan, 147 N.J. 409, 422 (1997). When

a defendant fails to object to the alleged error at trial, we

must apply the plain error standard of review. Thus, we must

determine whether any error contributed to an unjust and

unwarranted result. State v. Macon, 57 N.J. 325, 333 (1971); R.

2:10-2.Defendant didnot objectto any portionof the jury charge.

Here, the judge did not define any of the terms contained in the statute. The judge failed to define "knowingly" and "purposely." As a result, the jury was left to speculate concerning the requisite mens rea for the offense. We conclude, and the State agrees, that this failure is clearly capable of producing an unjust result and constitutes plain error warranting a new trial. As a result, we do not reach the other arguments raised by defendant.

Reversed and remanded. We do not retain jurisdiction.