STATE OF NEW JERSEY v. LUIGI DEIANA

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4490-08T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

LUIGI DEIANA,

Defendant-Appellant.

____________________________________________________________

January 3, 2011

Submitted October 19, 2010 - Decided

Before Judges Graves and Messano.

On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 08-01-0036.

Yvonne Smith Segars, Public Defender, attorney for appellant (Thomas Menchin, Designated Counsel, on the brief).

Theodore J. Romankow, Union County Prosecutor, attorney for respondent (James J. Leavy, Assistant Prosecutor, on the brief).

PER CURIAM

Defendant Luigi Deiana appeals from the judgment of conviction and sentence imposed following a jury trial at which he was convicted of second-degree possession of a firearm for an unlawful purpose, N.J.S.A. 2C:39-4(a); fourth-degree forgery, N.J.S.A. 2C:21-1(a)(2); and the disorderly persons offense of harassment, N.J.S.A. 2C:33-4, a lesser-included offense of terroristic threats, N.J.S.A. 2C:12-3(b). At the end of the State's case, the judge granted defendant's motion for acquittal on the charge of third-degree unlawful possession of a firearm, N.J.S.A. 2C:39-5(b). Additionally, the jury acquitted defendant of fourth-degree aggravated assault, N.J.S.A. 2C:12-1(b)(4) ("[k]nowingly under circumstances manifesting extreme indifference to the value of human life point[ing] a firearm"). On the weapons offense, the judge sentenced defendant to: a five-year period of incarceration, with a three-year period of parole ineligibility pursuant to N.J.S.A. 2C:43-6(c); a concurrent term of nine months imprisonment on the forgery conviction; and appropriate financial penalties on those convictions and the harassment conviction.

Defendant raises the following points on appeal:

POINT I

DEFENDANT'S MOTIONS FOR JUDGMENT OF ACQUITTAL NOTWITHSTANDING THE VERDICT AND/OR MOTION FOR A NEW TRIAL SHOULD HAVE BEEN GRANTED

POINT II

ERRORS CONCERNING OTHER CRIMES EVIDENCE REQUIRE REVERSAL

After consideration of these arguments in light of the record and applicable legal standards, we affirm.

Trial testimony revealed that defendant resided in the home of Vivian Sharp, an elderly woman who had recently lost her husband of sixty-four years. Defendant and Sharp used to work in the same business. When the business closed, Sharp believed defendant left his apartment in Hillside and returned to Italy. Sharp's husband subsequently contracted Parkinson's and Alzheimer's diseases and defendant, who had returned to the United States, moved into the basement of the Sharp home. For the next two to three years, defendant assisted the couple, taking Mr. Sharp to his doctor's appointments and doing odd-jobs around the house.

At approximately 10:45 p.m. on September 11, 2007, Sharp rang the doorbell of her next-door neighbor, Joan Alexiades. Sharp was holding a note (the note) in her hand, and said, "[H]e's trying to kill me." Alexiades's husband called 911 and the police responded quickly. Within minutes thereafter, defendant walked from the Sharp home and spoke to police officers on the scene.

Matthew Disano, a Roselle Park police officer, responded to the call. When he arrived, he saw Sharp seated in a chair in the Alexiades's home, "visibly scared." He examined the note which read: "I have [a] gun. Take you[r] clothes off and don't turn around or I will kill you." The note was "composed of letters and words that were cut out of . . . magazines and newspaper articles."

When defendant approached the Alexiades home, Sharp pointed toward him and "said that's him." Defendant told Disano that he "saw someone running through the yards with a gun." Disano administered defendant his Miranda1 rights and asked him to describe this person. Defendant told Disano "it may be a girl," and "she may be in the house." After canvassing the area with negative results, Disano and the other officers entered Sharp's home.

After checking for intruders, they proceeded to the basement. Disano saw a silver handgun on a shelf that he later determined was a pellet gun. Nearby were "pornographic pictures of . . . Mrs. Sharp, with her head posted on the person in the picture's body." Disano seized these items, as well as a small piece of wood that was propped up against the "receiver end" of a telephone "so that there couldn't be a dial tone." The officer also seized another pornographic photograph with "lettering on it . . . [that] said[,] [']I want to do this to you.['"]

Defendant was arrested and processed at police headquarters. Disano found five checks drawn on Sharp's bank account in his wallet. Two of the checks, in the amount of $75,000 and $25,000, were made payable to defendant and "endorsed" by Sharp's husband. The words "thousand" were printed as "t-h-o-u-s-a-n-t." The words "gift to Luigi" were written in the memo portion of the larger check. The other three checks were blank.

Sharp testified that defendant "was a big help" when her husband became ill. After his death, however, defendant asked Sharp for her power of attorney in his favor, but she refused. Sharp asked defendant to leave the house "but nothing happened." Sharp believed that defendant was keeping visitors from seeing her and was trying to convince her that the house was haunted. Sharp also testified that the handwriting on the checks found in defendant's wallet was not her husband's and that the couple never made a gift to defendant.

On the night in question, Sharp was ready to retire to bed but went down to the basement to retrieve some clothing from the washroom. She found the note near the washing machine but did not read it until she was upstairs in her bedroom. The note "upset [her]" so she tried to call for help but "the phones were dead." Sharp then encountered defendant on the stairs to the basement; he was dressed in "a beanie hat and a . . . mask." Defendant carried what Sharp believed was "a toy gun." She initially thought defendant was "kidding" but then he pointed the gun at her and said "take off your clothes, lay down, I'm going to kill you." She recognized defendant's voice because "he ha[d] a little bit of an accent." Sharp left her house and went to her neighbor's home clutching the note.

The judge conducted a Rule 104 hearing outside of the jury's presence with respect to the State's next witness, Jeanne Haralla. She was Sharp's godchild, as well as executrix and alternate trustee in wills that Sharp and her husband executed in January 2007. Before Mr. Sharp died, Haralla became aware that two copies of these documents were missing. In July, after Mr. Sharp died, Haralla went to Sharp's home and secured another copy of his will. The next day, Haralla returned to organize the estate's various financial statements, which were contained in a "blue binder." She left the binder on the dining room table while she attended to Mrs. Sharp who was upstairs in her bedroom. Haralla saw defendant "come in the front door and hide behind the door jam." When she returned to the dining room, the blue binder was missing. Defendant denied taking the binder.

Haralla returned to the Sharp home on September 12 and searched the basement. In plastic bags that contained defendant's mail and other correspondence, she found an empty envelope that had contained Mr. Sharp's will, as well as copies of a prior trust agreement and powers of attorney the couple had executed.

Defendant argued this evidence was irrelevant to the charges contained in the indictment. The State countered by arguing that the evidence demonstrated defendant's attempt to take over Sharp's finances. The judge agreed, concluding the testimony and evidence showed defendant's "intent to gain control over Ms. Sharp's finances and her money." The judge further found that the "incidents occurred reasonably close in time to . . . the dates of the indictment." Haralla testified before the jury in a similar fashion to her testimony during the Rule 104 hearing.2

Eileen Beurer was another of Sharp's neighbors. During the summer of 2008, she helped Sharp clean the basement of her home. Beurer found copies of Sharp's bank statements and another pornographic photograph with a photo of Sharp's head pasted on it among defendant's belongings. Beurer also described an incident that occurred sometime before September 11, 2007. She called to see if Sharp was at home and defendant answered and told her Sharp was not there. As Beurer had a key to Sharp's house, she went there, opened the door and found Sharp eating breakfast.

Defendant moved for a judgment of acquittal after the State rested. The judge dismissed the unlawful possession of the firearm count of the indictment, concluding there was no evidence that defendant possessed the gun outside of his home, and denied the balance of the motion. Defendant did not testify or call any witnesses.

In his final charge to the jury, and without objection, the judge provided the model jury instructions regarding the crime of possession of a firearm for an unlawful purpose. He instructed the jurors that the State must prove beyond a reasonable doubt that defendant possessed the firearm with "a purpose to use [it] in a manner that was prohibited by law." He then told the jurors the following:

In this case the State contends that the defendant's unlawful purpose in possessing the firearm was to place Vivian Sharp in fear that she would either be killed or sexually assaulted. But you must not rely upon your own notions of the unlawfulness of some other undescribed purpose of the defendant. Rather, you must consider whether the State has proven the specific unlawful purpose charged. . . . [T]he State need not prove that the defendant accomplished his unlawful purpose of using the firearm.

Prior to sentencing, defendant moved for a judgment of acquittal notwithstanding the verdict on the charge of possession of a firearm for an unlawful purpose, or, alternatively, for a new trial. Defendant argued that because the jury acquitted him of aggravated assault and terroristic threats, and the indictment charged him with no other crime, he was entitled to a judgment of acquittal on the weapons offense. The judge denied the motions. He noted that it was unlikely that defendant ever intended to sexually assault Sharp, or that Sharp believed he had such intent. Nevertheless, the judge concluded that there was sufficient evidence to prove beyond a reasonable doubt that defendant used the weapon to make Sharp "feel sexually ill at ease," and at "risk of other people taking advantage of her."

Before us, defendant argues that the judge erred in denying his motion for judgment notwithstanding the verdict, or alternatively, for a new trial. Specifically, he argues that the State contended two possible "unlawful purposes" were suggested by the evidence: aggravated assault -- pointing the firearm at Sharp; and sexual assault. Defendant notes that the judge never mentioned the aggravated assault in his instructions regarding defendant's "unlawful purpose." He further argues that sexual assault was not charged in the indictment, and, in deciding the post-trial motions, the judge found it was unlikely that defendant intended to sexually assault Sharp or that Sharp believed defendant had such intent. Defendant also contends that the judge charged the jury as to an unlawful purpose not suggested by the State, i.e., "a threat to kill . . . Sharp." Finally, although the argument is not expressly contained in defendant's point heading, he contends that that judge's charge failed to "spell[] out the precise elements of the crimes which it [wa]s alleged were the object[s] of defendant's unlawful purpose."

We apply the same standard of review to the denial of defendant's motion for judgment notwithstanding the verdict or for a new trial as we do in reviewing the denial of a motion for acquittal. State v. Perez, 177 N.J. 540, 549 (2003). We review the trial judge's decision de novo, applying the same standard used by the trial judge, State v. Bunch, 180 N.J. 534, 548-49 (2004), namely:

[W]hether, viewing the State's evidence in its entirety, be that evidence direct or circumstantial, and giving the State the benefit of all its favorable testimony as well as all of the favorable inferences which reasonably could be drawn therefrom, a reasonable jury could find guilt of the charge beyond a reasonable doubt.

[State v. Reyes, 50 N.J. 454, 459 (1967).]

Since defendant did not object to the jury charge, we must assess his claim in that regard under the plain error standard. R. 2:10-2. "In the context of a jury charge, plain error requires demonstration of '[l]egal impropriety . . . prejudicially affecting the substantial rights of the defendant sufficiently grievous to justify notice by the reviewing court and to convince the court that of itself the error possessed a clear capacity to bring about an unjust result.'" State v. Burns, 192 N.J. 312, 341 (2007) (quoting State v. Jordan, 147 N.J. 409, 422 (1997)). The alleged error must be assesed in light of "the totality of the entire charge, not in isolation." State v. Chapland, 187 N.J. 275, 289 (2006). While an erroneous jury charge may be a "'poor candidate[] for rehabilitation' under the plain error theory," Jordan, supra, 147 N.J. at 422 (quoting State v. Simon, 79 N.J. 191, 206 (1979)), we nonetheless consider the affect of any error in light "of the overall strength of the State's case." Chapland, supra, 187 N.J. at 289. Moreover, the failure to "interpose a timely objection constitutes strong evidence that the error belatedly raised here was actually of no moment." State v. White, 326 N.J. Super.304, 315 (App. Div. 1999), certif. denied, 163 N.J.397 (2000).

Applying these standards to the points raised on appeal, we find no basis to reverse defendant's conviction for possession of a firearm for an unlawful purpose.

To sustain a conviction under N.J.S.A. 2C:39-4(a), the State must prove four elements beyond a reasonable doubt: "(1) the object possessed was a firearm; (2) defendant possessed it; (3) the purpose of the possession was to use the firearm against another's property or person; and (4) defendant intended to use it in a manner that was unlawful." State v. Banko, 182 N.J. 44, 56-57 (2004)(citation omitted). "The legislative objective of N.J.S.A. 2C:39-4a . . . is to punish someone for possessing a firearm for an unlawful purpose before the conduct escalates to the stage of an attempt." State v. Brims, 168 N.J. 297, 304 (2001). "[A] jury instruction on a charge of possession of a weapon for an unlawful purpose must include an identification of the unlawful purpose or purposes suggested by the evidence and an instruction that the jury 'may not convict based on their own notion of the unlawfulness of some other undescribed purpose.'" State v. Villar, 150 N.J. 503, 511 (1997) (quoting State v. Jenkins, 234 N.J. Super. 311, 316 (App. Div. 1989)).

As one commentator has noted,

There are two major categories of possession for-unlawful-purposes cases: those in which the possession charge is coupled with a charge of an act accomplished with the gun, and those in which the unlawful purpose is established independently of the commission of a substantive offense.

[Cannel, New Jersey Criminal Code Annotated, comment 3 on N.J.S.A. 2C:39-4 (2010).]

A defendant may be convicted of violating N.J.S.A. 2C:39-4(a) even if acquitted of the substantive charges contained in the indictment. Banko, supra, 182 N.J. at 56-58. Likewise, a conviction for violating the statute will stand even if the substantive crime is not charged in the indictment, as long as the evidence supports a finding that defendant possessed the firearm with the intent to use it unlawfully. Brims, supra, 168 N.J. at 304-05.

In this case, there was sufficient evidence to permit the jury to find that defendant possessed the pellet gun with the purpose to use it unlawfully against Sharp. The evidence suggested a number of unlawful purposes, two charged in the indictment, and one not charged: the aggravated assault -- Sharp claimed defendant pointed the gun at her; the terroristic threats -- Sharp claimed that defendant threatened to kill her while pointing the gun at her; and a sexual assault -- Sharp testified that defendant told her to take off her clothes, combined with the circumstantial evidence, i.e., the note and the altered pornographic photos. Thus, defendant's attack on the verdict itself is without merit.

Although the judge's instructions did not specifically mention the aggravated assault or terroristic threat charges contained in the indictment, we conclude they appropriately conveyed all the potential unlawful purposes suggested by the evidence -- "defendant's unlawful purpose in possessing the firearm was to place Vivian Sharp in fear that she would either be killed or sexually assaulted." He further instructed the jury that it could not "convict[] defendant based on any other unlawful purpose." Brims, supra, 168 N.J. at 306. The charge need not define the elements of the offenses cited as proof of defendant's unlawful purpose. Ibid. In short, there was no error in the charge.

In his second point on appeal, defendant contends that pursuant to N.J.R.E. 404(b), Haralla's testimony "should not have been admitted at all," that it's probative value was outweighed by the potential for prejudice and that the judge failed to provide adequate instructions on the permissible and impermissible uses of the evidence. We reject these arguments.

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. [However,] [s]uch 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.

[Ibid.]

In State v. Cofield, 127 N.J. 328, 338 (1992), the Court adopted a four-part test to determine the admissibility of such evidence.

The Cofield test requires that:

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.

[State v. Williams, 190 N.J. 114, 122 (2007) (citations omitted).]

Additionally,

even if relevant under N.J.R.E. 404(b), such evidence must nevertheless survive the crucible for all relevant evidence: "relevant evidence may be excluded if its probative value is substantially outweighed by the risk of (a) undue prejudice, confusion of issues, or misleading the jury or (b) undue delay, waste of time, or needless presentation of cumulative evidence."

[State v. Lykes, 192 N.J. 519, 534-35 (2007) (quoting N.J.R.E. 403).]

We accord "great deference to the decision of the trial [judge]" regarding the admissibility of N.J.R.E. 404(b) evidence. State v. Barden, 195 N.J. 375, 390 (2008) (citing Lykes, supra, 192 N.J. at 534). "Only where there is a clear error of judgment should the trial court's conclusion with respect to that balancing test be disturbed." State v. Marrero, 148 N.J. 469, 483 (1997) (quotations omitted).

Here, the judge did not mistakenly exercise his discretion. Defendant was indicted for forging two of Sharp's checks. Thus, Haralla's evidence regarding defendant's possible theft of Mr. Sharp's will, the couple's bank statements and other financial data was highly relevant to establish both that defendant did not lawfully possess the checks and that they were not a "gift" from the Sharps. Defendant argues the evidence was "unnecessary." That is not the standard for determining whether its admission was error.

Defendant's argument as it pertains to the judge's charge lacks sufficient merit to warrant extensive discussion. R. 2:11-3(e)(2). The judge followed the model jury charge. It might have been preferable for him to instruct the jury at the time the evidence was admitted, as opposed to solely at the end of the case. See State v. Angoy, 329 N.J. Super. 79, 89-90 (App. Div.) (encouraging the "prompt delivery of limiting instructions"), certif. denied, 165 N.J. 138 (2000). However, Haralla testified on the same day that the judge provided his final jury charge, and we are fully confident that the jurors understood the instructions regarding the testimony that they recently heard.

1 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

2 A portion of Haralla's testimony before the jury is not transcribed. However, it is apparently undisputed that the omitted testimony was consistent with her prior testimony outside of the jury's presence.