STATE OF NEW JERSEY v. FRANK P. RENDFREY

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

FRANK P. RENDFREY, a/k/a ANDREW RENDFREY,

a/k/a FRANCIS RENDFREY,

Defendant-Appellant.

___________________________________

November 20, 2013

 

Submitted September 30, 2013 Decided

 

Before Judges Yannotti, St. John and Leone.

 

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 09-09-1481.

 

Joseph E. Krakora, Public Defender, attorney for appellant (Karen E. Truncale, Assistant Deputy, of counsel and on the brief).

 

John J. Hoffman, Acting Attorney General of New Jersey, attorney for respondent (Brian Uzdavinis, Deputy Attorney General, of counsel and on the brief).

 

PER CURIAM

Defendant Frank P. Rendfrey appeals from his convictions for the murder of Angela Paranzino and other offenses. We affirm his convictions, and remand for resentencing.

 

I.

Defendant was in a relationship with Paranzino. She and defendant were staying in her mother's first-floor apartment. On the evening of March 11, 2009, the mother returned home and found Paranzino with defendant. Even though Paranzino was under a doctor's care for diabetes and heroin use, and took suboxone to help her get off heroin, she looked like she was coming down from a "high." When her mother confronted her, Paranzino began yelling at defendant.

Upset, Paranzino eventually left and spent the night at a friend's house, where defendant repeatedly tried to contact her. About 2:50 p.m. the next day, she left for home. On the way, she sent a text message to another friend stating that she was tired of supporting defendant.

Around 3:30 p.m., Paranzino's upstairs neighbor saw defendant enter the first-floor apartment. When Paranzino arrived, she texted her friend that, even though she had kicked defendant out last night, she had walked in and found that he had come to the apartment in her absence and would not leave. Her friend told her to call the police.

After Paranzino entered the apartment, the neighbor heard increasingly loud arguments, with Paranzino repeatedly screaming "get the 'F' out." After ten or fifteen minutes of argument, the neighbor heard a loud banging, and then silence, followed by some dragging noises. Within a half-hour, he saw defendant leaving, pulling a black wheeled suitcase. The neighbor's brother went down and knocked on the apartment door, but there was no response.

Paranzino's mother returned to the apartment at about 6:30 p.m., and found Paranzino's bedroom door closed and locked. The mother knocked, got no response, and went to her own room. Later that evening, she became concerned because Paranzino's door was still closed and knocking produced no response. She removed the door from its hinges, and saw Paranzino's room had been ransacked. She found Paranzino's dead body wedged between the furniture. Paranzino's arm had a rubber band around it and a syringe sticking into it, with empty heroin packets on the floor.

Paranzino's mother also discovered that someone had taken Paranzino's black wheeled suitcase, cell phone, purse, and other small valuables. After her mother and the neighbor told police that defendant had been in the apartment, police filed complaints against him for burglary and theft.

On the night of March 12, defendant used Paranzino's cell phone to call Jennifer Henry, the mother of his one-year-old daughter. At that time, Henry was at a birthday party for another of defendant's children, which he had failed to attend. Defendant was frantic and begged Henry to pick him up. She agreed, and discovered him with a wheeled suitcase she had never seen before. Defendant then convinced her to rent him a room at a motel. The next day, defendant had Henry drive him to pick up his unemployment check from Paranzino's house, but made Henry park some distance away. Defendant eventually told Henry that he had strangled Paranzino, claiming it was in self-defense. He said he put a needle in her arm to make it look like an overdose, and locked her in her bedroom.

Investigators initially believed Paranzino had overdosed. When the medical examiner did an autopsy of Paranzino, however, he found the actual cause of death was manual strangulation, as evidenced by hemorrhaging blood vessels in her neck, eyes, and tongue. He also found signs of physical struggle. Based on the odd positioning of the syringe and the lack of indicia of actual injection, he believed the "drug overdose" was staged. Testing confirmed Paranzino had no illegal drugs in her bloodstream.

Police tried to locate defendant. They asked his parents and Henry to tell him that police wished to speak to him. Defendant called an investigator, but refused to give his phone number or address, and failed to come to the station. Defendant threatened Henry not to reveal what she knew.

On May 20, 2009, defendant got into an argument with Henry. After they parted, defendant called, texted, and threatened her. On May 21, Investigator James Mullin came to Henry's house. While he was there, defendant called, and Henry gave the phone to Mullin, who identified himself. Defendant hung up.

After Mullin left, defendant kept calling Henry. He was angry because she was talking to police. He became increasingly threatening. He accused her of being "more than friends" with his former friend Christian Lambros. Defendant told her that he had a gun and was on his way to New York to "take care of" Lambros. Defendant said he was at a train station, and trains could be heard in the background.

Believing defendant was serious, Henry became alarmed, called Investigator Mullin, and gave him defendant's cell phone number. Mullin called the prosecutor's office, which made an emergency request for defendant's cell phone carrier to locate the Global Positioning System (GPS) tracking unit in defendant's cell phone. Within minutes, the provider sent a signal which indicated the phone was in Newark. Newark police spotted defendant and he was arrested.

After his arrest, defendant gave a videotaped statement to police. Defendant claimed that on the day of Paranzino's death, he had been in New York and arrived at his child's birthday party at 6:00 p.m.

II.

The grand jury indicted defendant for first-degree murder, N.J.S.A. 2C:11-3a(1) & (2); third-degree burglary, N.J.S.A. 2C:18-2; third-degree theft, N.J.S.A. 2C:20-3; third-degree hindering apprehension, N.J.S.A. 2C:29-3b; first-degree witness tampering, N.J.S.A. 2C:28-5a(2); and two counts of third-degree terroristic threats, N.J.S.A. 2C:12-3a & b. The jury convicted defendant of the murder, theft, hindering apprehension, and witness tampering charges, as well as the lesser offense of fourth-degree criminal trespass, N.J.S.A. 2C:18-3. The jury acquitted him of the other charges.

For the murder, the judge sentenced defendant to life imprisonment with a thirty-five-year parole disqualifier. The judge imposed a consecutive term of fifteen years for witness tampering, set concurrent terms for the remaining offenses, and imposed restitution and fines.

Defendant appeals, raising the following arguments:

POINT I

 

THE DEFENDANT'S CUSTODIAL STATEMENT SHOULD HAVE BEEN SUPPRESSED AS FRUIT OF THE POISONOUS TREE BECAUSE LAW ENFORCEMENT USED DEFENDANT'S CELL PHONE NUMBER TO LOCATE HIM THROUGH HIS SERVICE PROVIDER WITHOUT OBTAINING A WARRANT.

 

POINT II

 

THE DEFENDANT WAS DENIED A FAIR TRIAL WHEN THE MEDICAL EXAMINER PROFFERED AN OPINION THAT ASSUMED THE ULTIMATE FACT THAT THE DEFENDANT WAS GUILTY OF HOMICIDE. (Not Raised Below)

 

POINT III

 

BECAUSE DEFENSE COUNSEL HAD A CONFLICT OF INTEREST BY PREVIOUSLY REPRESENTING A STATE WITNESS, A NEW TRIAL SHOULD HAVE BEEN GRANTED.

 

POINT IV

 

THE DEFENDANT'S SENTENCE MUST BE VACATED BECAUSE: A. THE MOTION FOR AN EXTENDED TERM WAS FILED OUT OF TIME; B. THE COURT FAILED TO CONSIDER THE IMPACT OF NERA ON THE SENTENCE; AND C. THE COURT RELIED UPON INCORRECT DATES TO ESTABLISH THE PREDICATE PRIOR CONVICTIONS. (Not Raised Below)

 

A. The State Failed To File For An Extended Term Within 14 Days of the Verdict Of Conviction.

 

B. The Sentence Is Illegal Because The Court Failed To Consider That It Was Subject To NERA.

 

C. The Court Relied Upon Incorrect Dates to Establish The Predicate Prior Convictions For An Extended Term.

 

 

 

 

 

 

 

 

III.

 

Defendant moves to suppress his post-arrest statement to police as "fruit of the poisonous tree"1 because law enforcement located him by having his cellular service provider locate his cell phone. The provider sent a signal to the phone which bounced off the cellular towers and triangulated the phone's location within a block radius. The signal indicated that defendant was near Bloomfield and Seventh Streets in Newark. Officers went to that area and found defendant on Third Street in Newark.

Defendant principally argues that a warrant was required before police could ask the provider to locate defendant's cell phone. Mullin testified that he believed that, in exigent circumstances, such a request could be made without prior judicial authorization. Subsequent legal developments show that Mullin's belief correctly reflected the state of the law at the time.

Years after the signal was sent to locate defendant's cell phone, this court "conclude[d] that the use of such [cell phone site] information to determine a suspect's general location on public roadways or other places in which there is no legitimate expectation of privacy does not violate the suspect's constitutional rights." State v. Earls, 420 N.J. Super. 583, 586 (App. Div. 2011). Our Supreme Court reversed, holding that "individuals have a reasonable expectation of privacy in the location of their cell phones under the State Constitution." State v. Earls, 214 N.J. 564, 569 (2013).2 The Court ruled that henceforth, to obtain cell phone location data, police would have to make "a showing of probable cause," and to obtain "a properly authorized search warrant" unless "a recognized exception to the warrant requirement applies, such as exigent circumstances" or "the emergency aid doctrine." Ibid.

The Court ruled, however, that "[b]ecause today's decision creates a new rule of law that would disrupt the administration of justice if applied retroactively, the rule will apply to this defendant and prospective cases only." Ibid. The Court so ruled because "it is apparent that the results in a substantial number of cases would be jeopardized if the Court applied its holding retroactively." Id. at 591. Thus, the new constitutional requirements of probable cause and a warrant do not apply retroactively to defendant's case.

The Court also ruled that "[f]or prior cases, the requirement in place at the time an investigation was conducted remains in effect." Ibid. The Court noted that, "[s]tarting January 12, 2010," a new statute required a law enforcement agency to "get a court order for cell-site information on a showing of less than probable cause: 'specific and articulable facts showing that there are reasonable grounds to believe that the record or other information . . . is relevant and material to an ongoing criminal investigation.'" Id. at 588, 591 (quoting N.J.S.A. 2A:156A-29(e)). Because that statute was not in effect on May 20, 2009, its requirement of a court order based on reasonable grounds did not apply when the defendant's phone was located.

The Supreme Court noted that "[n]o case law before 2010 specifically addressed cell-phone location information." Id. at 589. Further, "neither our case law nor the statute required a warrant for cell-phone location information." Ibid. The Court "conclude[d] that the police could not have reasonably anticipated that a warrant based on probable cause was needed" prior to its 2013 decision in Earls. Ibid. Therefore, when police made this was request in 2009, neither prior judicial authorization nor probable cause was required.

In any event, as the judge detailed, Mullin had probable cause. Henry told Mullin that defendant said he was armed with a gun and was going to New York to kill Lambros. Mullin also knew that Paranzino's death had been ruled a homicide, defendant was a suspect, he had been charged with burglary and theft, there was a warrant for his arrest, and he had been evading police for two months. Indeed, defendant does not dispute that Mullin had sufficient cause to locate defendant.

Because no warrant was required in 2009, police did not have to satisfy an exception to the warrant requirement such as exigent circumstances or emergency aid. In any case, as the judge found, there were clearly exigent circumstances. Both Henry and Mullin took seriously defendant's threat that he was going to kill Lambros, and Mullin took immediate action to protect Lambros. Defendant asserts that Lambros was in a New York police station at the time of the threat. The judge, however, credited Mullin's uncontradicted testimony that the signal had already located defendant's phone before Mullin called Lambros and learned he was at a police station. That factual finding was based on sufficient credible evidence, see State v. Rockford, 213 N.J. 424, 440 (2013), and supports Mullin's "reasonable belief, even if later found to be erroneous, that an emergency demands immediate assistance in order to protect or preserve life." State v. Boretsky, 186 N.J. 271, 280; see also State v. Walker, 213 N.J. 281, 292 (2013).

Thus, police followed then-governing law in locating defendant's phone. Further, police had probable cause and reasonably believed the circumstances were exigent. We uphold the judge's order denying suppression of defendant's statement.

IV.

Defendant next claims that he was denied a fair trial by an answer given by the medical examiner on redirect examination. Defendant did not object, however. Rule 2:10-2 permits us to notice plain error in the interests of justice, but we must disregard "[a]ny error or omission . . . unless it is of such a nature as to have been clearly capable of producing an unjust result." "Under that standard, defendant has the burden of proving that the error was clear and obvious and that it affected his substantial rights." State v. Morton, 155 N.J. 383, 421 (1998). We must hew to that standard of review.

On direct examination, the medical examiner testified that Paranzino died by manual strangulation, that there were signs of physical struggle, and that he did a swab of her nailbeds. He also related without objection that he had received information from the police that after she was seen with a boyfriend, her neighbors heard an argument, a pounding noise, and then silence, after which the boyfriend left.

On cross examination, defense counsel repeatedly stressed that the purpose of swabbing was to obtain evidence of the identity of the assailant, and that the medical examiner had not sent the swab for DNA analysis. On redirect, when asked why he did not submit the swab for DNA testing, the medical examiner responded:

. . . I have to depend [on the] scenario. In this case the story is one young male person come[s] in with a lady. There is a verbal argument. Then silence. Then that individual person left. For me that individual person kill[ed] the lady. So therefore I don't really need to do DNA analysis.

 

Rather than object to this testimony, defendant emphasized the medical examiner's choice not to do DNA testing. On recross, defense counsel reemphasized that "the reason you swab the fingernails is to look for DNA." In closing, defense counsel repeatedly highlighted that the medical examiner did not have the swab analyzed for DNA. Counsel argued that the medical examiner's failure to do this and other proper tests "leads into the strangulation diagnosis and why it's wrong."

On appeal, however, defendant asserts that the medical examiner offered an opinion that assumed the ultimate fact that defendant was guilty of homicide. The medical examiner, however, was not offering an opinion on the ultimate issue of guilt or innocence, nor did he name defendant as the killer. Rather, he was simply responding to defendant's repeated criticism by explaining that he did not submit the swab for DNA testing because he believed there was no dispute over identity of the possible assailant.

Indeed, it was undisputed that defendant was with Paranzino at the time of her death, and that they were fighting. Defense counsel in closing conceded that "there is no question [defendant was] there," and "[t]here is no question that [he] fled the apartment after Angela's death." Counsel contended that defendant was "getting into an argument with [his] girlfriend," and they were "pushing and shoving" each other, with Paranzino screaming at the top of her lungs, when she dropped dead with a thud from suboxone or diabetes ketone acidosis. Counsel explained the bruises on Paranzino's neck as "consistent with pushing and shoving," but "[t]hat doesn't make [defendant] a murderer." Thus, it is "fair to infer from the failure to object below that in the context of the trial [any] error was actually of no moment." State v. Macon, 57 N.J. 325, 333 (1971).

This case bears no resemblance to the cases on which defendant relies. The prosecutor did not ask the medical examiner to "opine on the credibility of the State's case," e.g., State v. Miraballes, 392 N.J. Super. 342, 359 (App. Div.), certif. denied, 192 N.J. 75 (2007), or to express[] a direct opinion that defendant is guilty of the crime charged." State v. Odom, 116 N.J. 65, 77 (1989); State v. Singleton, 326 N.J. Super. 351, 354 (App. Div. 1999). Nor did the witness purport to express an opinion "beyond the expertise of a medical examiner." State v. Jamerson, 153 N.J. 318, 324-25 (1998). Rather, in response to defense criticism that he did not perform a test, he simply explained the reason why. See State v. Frisby, 174 N.J. 583, 592 (2002) ("there are circumstances in which an officer will be allowed to testify, based generally on hearsay evidence, to explain the course of his or her investigation."). His testimony "was not tantamount to an expert opinion that defendant purposefully or knowingly murdered [Paranzino] or a mischaracterization of the events." State v. Papasavvas, 163 N.J. 565, 609 (2000). Thus, defendant has not shown plain error.

V.

Defendant next claims that his trial counsel had a conflict of interest because it was later discovered that he had represented a witness. On July 26, 2011, the State called Thomas Schodowski to testify that he knew Paranzino, but was incarcerated at the time of her death. He was also questioned by the prosecutor and trial counsel about his knowledge of Paranzino's use of heroin and suboxone.

Before testifying, Schodowski was interviewed by trial counsel. Schodowski suggested that trial counsel had represented him, but counsel had no recollection of doing so. Indeed, when the prosecutor noted that a computer docket linked trial counsel with Schodowski, counsel said the computer records were frequently wrong. After defendant was found guilty, trial counsel determined that, as a pool attorney for the Public Defender, he had been assigned to cover a hearing on January 14, 2010, at which Schodowski pled guilty to an unrelated charge of possessing heroin in 2009. Defendant filed a motion for a new trial, which the judge denied after receiving certifications.

"A criminal defense attorney must not be hindered by conflicts of interest that could compromise his or her duty to a client." State v. Miller, __ N.J. __ (Oct. 2, 2013) (slip op. at 27). "'[T]he constitutional effectiveness of counsel therefore depends on [counsel's] adherence to those ethical standards which serve to maintain his [or her] independent professional judgment.'" State v. Lasane, 371 N.J. Super. 151, 164 (App. Div. 2004) (quoting State v. Bellucci, 81 N.J. 531, 538 (1980)), certif. denied, 182 N.J. 628 (2005). Under the ethics rules, a lawyer who has represented a client may not later "represent another client in the same or a substantially related matter in which that client's interests are materially adverse to the interests of the former client," or "use information relating to the representation to the disadvantage of the former client." RPC 1.9(a), (c).

"[A] motion for a new trial is addressed to the sound discretion of the trial judge, and the exercise of that discretion will not be interfered with on appeal unless a clear abuse has been shown." State v. Russo, 333 N.J. Super. 119, 137 (App. Div. 2000); see R. 3:20 1. Here, the judge correctly found that defendant failed to demonstrate an actual or potential conflict of interest. See State v. Jimenez, 175 N.J. 475, 479 (2003) (finding no violation of the ethics rules by a lawyer's "previous one-day representation of a client who was . . . found to have no connection with the murder."). We therefore reject defendant's arguments for substantially the reasons set forth in the judge's thorough opinion on February 14, 2012.3

VI.

Defendant makes several challenges to his sentence. Most importantly, he asserts, and the State agrees, that the sentence is illegal because it fails to comply with the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. NERA provides that if a defendant is convicted of murder, the court "shall fix a minimum term of 85% of the sentence imposed, during which the defendant shall not be eligible for parole." N.J.S.A. 2C:43-7.2a, b, d(1). "[B]ecause the judgment does not include the mandatory NERA ineligibility term, and the judge did not refer to it in sentencing," the judge "clearly did not 'consider the defendant's eligibility for release under the law governing parole . . . in determining the appropriate term of imprisonment.'" State v. Ramsey, 415 N.J. Super. 257, 271-72 (App. Div. 2010) (quoting N.J.S.A. 2C:44-1c(2)), certif. denied, 205 N.J. 77 (2011). Accordingly, "[b]ecause a NERA sentence is required, and defendant's sentence is illegal, we reverse and remand for imposition of a NERA sentence." State v. Johnson, 376 N.J. Super. 163, 167 (App. Div. 2005) (citing N.J.S.A. 2C:43-7.2).

Defendant's remaining contentions concern the State's motion seeking an extended term for defendant as a repeat violent offender under N.J.S.A. 2C:43-7.1.4 He contends that the motion, filed September 15, 2011, was untimely because it was not filed and served "within 14 days of . . . the return of the verdict" on July 28, 2011, as required under R. 3:21-4(f), absent a showing of good cause. Defendant failed to object at sentencing, however, so he must show plain error. R. 2:10-2.

Defendant cannot show plain error. He does not claim he was prejudiced by the delay in filing. At sentencing, he conceded that the motion was "accurate," and that he "can't challenge the substance of the motion." The motion detailed defendant's conviction in Essex County on two counts of aggravated assault under N.J.S.A. 2C:12-1b, defendant's unrelated conviction in Passaic County on another count of aggravated assault under N.J.S.A. 2C:12-1b, and defendant's last release from confinement in 2006. Those uncontested facts fully satisfied the requirements of N.J.S.A. 2C:43-7.1 for an extended life term of imprisonment.

Defendant lastly complains that in referencing those prior convictions, the judge misstated the date of one offense, and the date of conviction of the other. Any misstatement can be corrected on remand.

We therefore affirm defendant's convictions, and remand for resentencing in accordance with this opinion. We do not retain jurisdiction.

Affirm in part, remand in part.

1 See State v. Smith, 212 N.J. 365, 422 (2012), cert. denied, __ U.S. __, 133 S. Ct. 1504, 185 L. Ed. 2d 558 (2013).

2 The Court recognized that U.S. Supreme Court precedent under the federal constitution "would not require a warrant in this case." Id. at 589 (citing U.S. v. Jones, 565 U.S. __, 132 S. Ct. 945, 181 L. Ed. 2d 911 (2012); Smith v. Maryland, 442 U.S. 735, 99 S. Ct. 2577, 61 L. Ed. 2d 220 (1979)).

3 The judge also found that there was no appearance of impropriety. That was unnecessary, as the Supreme Court has "reject[ed] the appearance of impropriety as a factor to be considered in determining whether a prohibited conflict of interest exists under R.P.C. 1.7, 1.8 or 1.9." In re Supreme Court Advisory Committee on Professional Ethics Opinion No. 697, 188 N.J. 549, 563 n.5 (2006).

4 The State contends the remand to apply NERA moots the extended-term issue. To the contrary, the propriety of the extended term motion remains relevant, as that motion required a mandatory life term of imprisonment. Cf. N.J.S.A. 2C:43-7(6), -7.2.