STATE OF NEW JERSEY v. DAVID ROMEO

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4580-09T3

A-5204-09T3

STATE OF NEW JERSEY,

Plaintiff-Respondent/

Cross-Appellant,

v.

DAVID ROMEO,

Defendant-Appellant/

Cross-Respondent.

____________________________________________

August 26, 2013

 

Argued March 11, 2013 - Decided

 

Before Judges Graves, Espinosa, and Guadagno.

 

On appeal from the Superior Court of New Jersey, Law Division, Cape May County, Indictment No. 08-08-0654.

 

Kevin G. Roe argued the cause for appellant/cross-respondent.

 

Frank J. Ducoat, Deputy Attorney General, argued the cause for respondent/cross-appellant (Jeffrey S. Chiesa, Attorney General, attorney; Mr. Ducoat, of counsel and on the brief).

PER CURIAM

Following a jury trial, defendant David Romeo, a former sergeant with the Wildwood Police Department, was convicted of official misconduct for kicking two suspects in the head while they lay handcuffed on the ground. Defendant was sentenced to five years in prison, although the trial court denied the State's request to sentence defendant to any period of parole ineligibility.

Defendant challenges comments made by the prosecutor during summation, the admission of evidence related to allegations of prior misconduct, and several other evidentiary rulings. In a cross-appeal, which we have consolidated for purposes of this opinion, the State challenges the trial court's decision to waive the mandatory term for official misconduct and claims the trial court applied the wrong standard. Following our review, we affirm defendant's conviction but remand for resentencing.

I.

 

A.

 

Defendant joined the Wildwood Police Department in 1994 and was promoted to sergeant in April 2007. The incident which resulted in this prosecution occurred on July 24, 2007. We glean the following facts from the record.

Wildwood Detectives Walter Cubernot and Edward Ramsey, and Patrolman Roger Lillo had spent the day investigating two males suspected of committing a series of car burglaries near the Wildwood boardwalk. Ramsey was the lead investigator on the case.

While following the suspects, Ramsey retrieved a portable compact disc player that one of them discarded into a trash can on the boardwalk. At approximately 3:00 p.m., Lillo saw the suspects go into a parking lot and attempt to open the doors of several cars.

After briefly losing sight of the suspects, Lillo and Ramsey saw them inside a green van with one of the doors ajar. Believing the suspects had broken into the van, Ramsey dropped the compact disc player, ran up to the open door and identified himself as a police officer. Lillo stepped away from the van and called for backup.

Ramsey saw one of the suspects, later identified as Louis McCullough, seated inside the van. When Ramsey tried to place McCullough under arrest and remove him from the van, McCullough resisted, first striking Ramsey in the arm and then slamming him into the doorjamb of the van. Ramsey hit McCullough several times and was able to get one handcuff on him and pull him out of the van.

Meanwhile, Cubernot approached the van and drew his weapon. While observing Ramsey and McCullough engaged in a struggle, Cubernot saw the second suspect, later identified as Gilbert Haege, crouched down behind the driver's seat. After Ramsey removed McCullough from the van, he handcuffed him and, with the assistance of Lillo, placed him on the ground in the parking lot. Ramsey then assisted Cubernot in forcefully removing Haege. Haege resisted and refused to take his right arm from underneath his body. Ramsey pinned Haege to the ground and handcuffed him.

Eventually, both McCullough and Haege were subdued. Both were lying on their stomachs with their hands cuffed behind them, five to ten feet apart. Cubernot described Haege's demeanor after he was handcuffed:

Q: When you say secured, could you describe how he was on the ground?

 

[CUBERNOT]: He was lying face-down with his arms behind his back and had handcuffs on.

 

Q: Would you describe his demeanor at that time?

 

[CUBERNOT]: He just laid there. The fight was over. He gave up. I mean, he was done.

 

Q: Was he subdued?

 

[CUBERNOT]: Yes.

What happened next formed the basis for the charge against defendant. That day, defendant was the supervisor on the 3:00 p.m. to 11:00 p.m. shift. After hearing Lillo's radio call for backup, defendant left the Wildwood Police Station and drove to the scene, arriving within a few minutes of Lillo's call. Cubernot testified that just before defendant arrived, he was trying to help McCullough stand up in order to get him to a police car. As Cubernot explained:

When you're handcuffed like that, sometimes you need help. . . . You're handcuffed behind your back. It's a little hard to move. You're kind of restricted. So any arrest I've ever made where someone was handcuffed behind their back, I would roll them over, sit them up and assist them by picking them up.

 

As Cubernot was preparing to sit McCullough up, he saw defendant walking quickly in his direction. Defendant was dressed in full police uniform, wearing "boot-type shoes" and began to yell when he approached Haege, but Cubernot could not hear what he was saying. Defendant then walked to where Haege was lying, still face-down on the ground, handcuffed behind his back, and kicked him once in the head. Cubernot was "stunned" by what defendant did.

Defendant then walked to where Cubernot had placed McCullough in a seated position. As Cubernot reached under McCullough's armpits to pick him up, defendant yelled at Cubernot, "put him down." In response to this order by his sergeant, Cubernot "set McCullough back down on his rear." Cubernot then observed:

Sergeant Romeo takes the palm of his hand and pushes [McCullough] in the side of the head which causes him to roll over because he's handcuffed behind his back like a weeble-wobble. He can't stay up. He rolls over, now he's back face-down . . . .

Cubernot testified defendant "cocked his right leg back and wind [sic] up kicking McCullough in the face two times." Defendant then walked away. Cubernot saw no weapon on the ground and never saw defendant point to or pick up anything from the ground.

Lillo testified the two suspects were lying on the ground on their stomachs with McCullough's head "facing southbound" and Haege's head "facing northbound." "The next thing that happened was basically Sergeant Romeo pulls up, exits his patrol vehicle, walks up to Haege, kicks him in the head." Lillo explained that McCullough was "kind of up on his knees sitting on his butt." Defendant then "stepped over" Haege, "grabbed the back of [McCullough], threw him to the ground, and proceeded to kick McCullough in the head twice." Defendant was yelling at the suspects but Lillo was unable to "say specifically what he was saying."

Lillo said the whole incident "happened within seconds" and he was "basically in shock" at what he saw. Lillo "was staring right at" the two suspects and saw no shiny metal objects or anything else between them, did not see defendant pick up anything, and was unaware whether any objects were found during the pat-down searches of the suspects.

Ramsey testified that Haege was handcuffed on the ground, McCullough was seated with his feet out in front, and Lillo was "standing over top" of the suspects "yelling" down at them. Defendant came from somewhere behind Ramsey "yelling something," but Ramsey "ha[d] no idea what it was." He did not hear defendant yell "weapon." Defendant then walked up and gave Haege "a sweeping kick . . . in the face." Ramsey said the kick "wasn't an accident" and "was done intentionally." Ramsey "was shocked" at what he saw. Defendant then stepped over Haege and yelled for Cubernot to "put him down," referring to McCullough. Cubernot "kind of stood up straight" and "just let go of him." Defendant "was yelling at McCullough," but Ramsey had "no idea" what he said.

Ramsey said defendant then "with an open hand, just kind of palmed the side of his head and pushed him over, pushed McCullough over to the ground." The handcuffed McCullough "just kind of dumped over, just fell over on to his right side." Then defendant "kicked him twice right in his face" and "just walked away." Ramsey described defendant's shoes as "trooper boots." Ramsey never saw a weapon or any type of "shiny object" on the ground near the suspects.

Haege's face was bleeding and Ramsey told Lillo to contact the rescue squad to come to the police station and "clean . . . up" Haege. Ramsey called Sergeant Gallagher to inform him they had the men in custody and to request a camera.

Haege testified that he was handcuffed and lying on the ground "waiting" when he heard a car pull up and he saw "a black boot right at [his] head." He was kicked in the right side of his head, but he did not know who kicked him or whether it was a police officer. Haege denied he was trying to use force, threaten anyone or reach for a weapon when he was kicked. Haege admitted that he and McCullough had committed "many, many car burglaries." At the time of his arrest, Haege admitted he was under the influence of heroin. He pled guilty to two charges of burglary and received concurrent three-year sentences with no parole disqualifier.

McCullough also pled guilty to two burglaries and received a sentence of nine months. He testified the prosecutor dismissed "75 or 80" charges that were pending, but claimed the prosecutor made no promises in exchange for his testimony against defendant.

McCullough admitted he had initially been resisting Ramsey, but said he had stopped, and was handcuffed and lying on the ground with his hands behind him. He observed another officer getting ready to pick Haege up, and saw defendant "kick [Haege] in the face."

McCullough testified he was lying face-down when defendant walked over and kicked him in the face three times. After kicking him, defendant called him "motherfucker," and told him "you got what you deserve." McCullough admitted he was carrying "a Gerber tool"1 in the pocket of his cargo shorts and explained the tool "was for burglary" and he regularly used it to break into cars.

Defendant testified that when he arrived at the crime scene he believed it was still active because no one had canceled the call for backup or stated the scene was secure. Defendant spotted Lillo and Ramsey and after parking his car, he ran at "a full sprint" over to Lillo. When he reached Lillo, defendant testified he saw a "knife on the ground and two subjects laying on the ground." Defendant claimed the knife was "opened up" and he "yelled knife the same time as I gave [Haege] a distracting kick" in his head and "stepped over him."

Defendant testified McCullough "was laying [sic] flat on the ground" and he stepped "in between the two subjects and I reached down for the knife and at the same time I gave [McCullough] a kick to his head and I said look away and I picked up the knife." Defendant claimed the suspects were laying parallel to each other and the "knife" was approximately a foot and a half away from McCullough. He admitted that neither Haege nor McCullough reached for the knife.

Defendant conceded that McCullough was handcuffed, but claimed the knife was a threat and McCullough was "part of the threat if he can get to that knife before I can safely secure it." Defendant denied that he had stopped to "wind up and kick" Haege or McCullough as Ramsey had testified. He said he "didn't use full force" but "used enough force . . . to distract them." Defendant claims he saw no injuries to either suspect from the kicks.

Defendant testified he picked up the knife, walked over to Cubernot to hand the knife to him, but Cubernot told him to give the knife to Officer John Flanigan. Defendant claimed he handed the knife to Flanigan and told him and Officer Elias Aboud to transport the prisoners.

Cubernot testified he had picked up McCullough and escorted him to another officer's patrol car where he searched McCullough for weapons. It was during that search that Cubernot first found the closed Leatherman utility tool in McCullough's right front pocket. He described the tool as containing pliers, knife blades, scissors, a nail file, a small serrated saw, and screwdrivers.

Cubernot denied giving the tool to Flanigan or defendant at the scene. He placed it in his front pocket for security, took it to the police station where he placed the tool in a paper evidence bag. Cubernot filled out the form that was stamped on the paper bag, logged it into the computer and placed it in the detectives' temporary evidence safe, which was located in the detective division on the second floor. The evidence form indicated the Leatherman had been found in McCullough's right front pants pocket, but it did not say who had recovered it.

Flanigan testified that he responded to Lillo's request for backup and arrived at the scene before defendant. Cubernot asked Flanigan for his handcuffs to secure one of the suspects. When Flanigan arrived, both suspects were secured and handcuffed behind their backs. After the suspects were secured, Flanigan returned to his car and waited to help transport them to the police station. He testified that he heard the sound of someone getting punched but did not turn around when he heard the sound. Flanigan stated he "would assume, but didn't know for a fact," that one of the suspects was being assaulted.

Flanigan also took some of the items from the scene including a portable CD player with headphones, a black case and a hat and completed a report dated July 28, 2007, indicating he transported those items. Flanigan testified he saw nothing on the ground between the suspects, but after he walked back to his patrol car, he claimed defendant handed him a Leatherman tool. Flanigan's report made no mention of the Leatherman tool.

Ramsey testified that after he returned to the police station, he and defendant had a "heated conversation":

I looked at Sergeant Romeo and I said what the fuck is your problem?

 

. . . .

 

He responded by saying what, and at that point I was, like, what? What? Are you out of your mind? And he said those guys didn't deserve that? And I was kind of taken aback by the comment he made.

 

. . . .

 

[H]e was basically asking me, like, what, you didn't agree with what I did. That's the way I took it.

 

. . . .

 

At that point, I said how do you think I'm going to write this up?

 

. . . .

 

I can't justify what you did, and he said I'll write it up, and I said how are you going to write it up, you weren't even there, and at that point he told me to relax.

 

. . . .

 

I said, well, you know, I'm not going to lose my job or my house because you lost your head, and at that point he got more commanding with me and was, like, you need to relax now. And at that point, I just -- I said fuck you, Dave, and I walked out, and that was it. That was the last contact I had with him.

 

Defendant admitted that Ramsey approached him after they returned to the station and asked him, "[W]hat the hell was that, Romeo?" Defendant claimed he didn t know what Ramsey was talking about. When Ramsey asked defendant how he was going to write up the incident, defendant told Ramsey not to "worry about writing it up, I'll write it up." Defendant then directed Ramsey to talk to the suspects and obtain their confessions. Defendant testified there was "no reason" for Ramsey to write up a report on what he did. Defendant denied he ever told Ramsey the suspects "deserved that" and claimed Cubernot did not approach him that night.

Defendant admitted he was required to do a "use of force" report as a result of the force used on Haege and McCullough, but claimed he "never got around to it." He testified he was working alone that night and the next, and was off the following two days, and he was suspended on July 27, 2007. After his suspension, defendant testified his attorney advised him not to complete the report.

Cubernot testified he placed the Leatherman into a paper evidence bag and entered information about the seized item on a computer. He then printed out the form he had just completed and stapled the form to the evidence bag. Cubernot then "sealed" the bag containing the Leatherman with more staples and placed the bag into the detectives' safe. At trial, Cubernot identified the evidence bag containing his handwriting indicating he placed the bag containing the Leatherman into the detectives' safe at 6:30 p.m. on July 24, 2007. Cubernot completed a supplemental report fourteen months after the incident, indicating he found the Leatherman during his search of McCullough.

Ramsey was the evidence officer. Approximately one week after the arrests, he removed the evidence bag containing the Leatherman from the detectives' safe, logged it into the computer, and secured the bag in the evidence room.

B.

On August 26, 2008, a grand jury sitting in Cape May County returned a one-count indictment charging defendant with official misconduct, N.J.S.A. 2C:30-2.

The trial court conducted a pretrial hearing over the course of five days to determine the admissibility of evidence the State sought to introduce pursuant to N.J.R.E. 404(b), of prior incidents involving acts of excessive force committed by defendant while on duty as a police officer. In a thorough oral opinion, the trial court made credibility findings and granted the State's motion to admit evidence of three of the four incidents. The 404(b) testimony at trial can be summarized as follows:

The Hruska/Baker Incident

Jason Baker testified that in 2002 he was at a car show in Wildwood with his two brothers, John Hruska and Joshua Baker, and Hruska's girlfriend. Jason observed defendant, who was on duty and in uniform, approach Joshua and ask him what he had in his pocket. Joshua replied he had a pack of cigarettes, a lighter and a bandanna. Hruska then asked defendant what his brother had done. Jason testified, "[defendant] snapped, grabbed my brother by his throat, had one hand on his throat, one hand on his side, took him approximately 15 feet, [and] slammed him on the back of his car." As this was happening, Jason testified that Hruska's "[a]rms were at his side the whole time." Jason then observed defendant spray mace from a can into Hruska's face. After he sprayed the mace, Jason observed defendant "took [Hruska] down to the ground, slammed him on the ground." Jason did not observe Hruska resist or fight back at all.

John Hruska testified and provided some additional details surrounding the incident. Hruska was nineteen at the time of the incident and his brothers were fifteen and seventeen. He felt responsible for his brothers to "[m]ake sure nothing happened." Hruska observed defendant ask for identification from someone who was drinking. Hruska then observed defendant tell Joshua to empty his pockets. Joshua complied and pulled out "[a] few CD cases, [a] CD player, and an empty bottle of soda."

Hruska then testified defendant peeled off his gloves and asked "if he still needed his bitch-smacking gloves." Hruska stepped beside his brother and asked defendant what he had done wrong. Hruska testified defendant grabbed him by the throat, carried him to the car, slammed him on the trunk and kneed him in the groin. Defendant sprayed Hruska in the face with mace twice and threw him on the ground.

Hruska claimed that he was injured when a pager that he was carrying dug into his hip. Hruska was permitted to display to the jury a scar on his hip he received as a result of the incident.

Hruska was charged with aggravated assault and resisting arrest. Although Hruska admitted pleading guilty to aggravated assault, he maintained he was not guilty of the charge and only pled guilty because he could not afford to pay a lawyer to try the case.

Shane Miller testified that he attended the car show in 2002 and observed defendant questioning someone for holding a beer. The next thing Miller saw was defendant "holding the guy up against the car with his hand on the throat." When asked how the situation got to that point, Miller replied

I guess they were interacting, I don't know exactly what was said, but the next thing I see is him holding the guy up against the car with his hand and a guy telling him that I'm trying to move my fire pager, and that's all that happened, and then they fell to the ground.

 

Miller, who did not know Hruska, testified that Hruska did nothing to resist defendant when he was sprayed with pepper spray.

The Petaccio Incident

Michael Petaccio testified that he is the general manager of his family's Wildwood nightclub, the Fairview Caf (Fairview). He was working at the club during the early morning hours of June 25, 2004. Petaccio and another Fairview employee, John Toto, were standing near the exit just before the 3:00 a.m. closing time as patrons were leaving. Petaccio testified defendant was on duty and in uniform, standing just inside the doorway of the Fairview, when he observed defendant "place both of his hands firmly on the buttocks of one of [Petaccio's] patrons." Petaccio was within five or six feet of defendant when he took a picture of defendant "with his hands on the buttocks of the female patron." When defendant realized what Petaccio had done, he approached Petaccio "very quickly," and punched him in the arm, causing him to drop the camera. Defendant then placed Petaccio under arrest and handcuffed him. When Petaccio asked defendant what he was being arrested for, defendant responded "[he] didn't know yet."

Defendant eventually charged Petaccio with causing a disturbance. Although Petaccio was found not guilty of the charge in municipal court, the trial court did not permit the jury to hear the outcome.

John Toto testified that after Petaccio took a picture of defendant, Petaccio stated, "Got you, Romeo." With that, defendant approached Petaccio and "smashed the camera out of [Petaccio's] hand." Defendant then placed Petaccio under arrest and took him away in the back of a police car.

The Russell Incident

Jason Russell testified that on January 27, 2002, between 1:00 a.m. and 2:00 a.m., he and some friends chased someone into a house and kicked in the front door. Russell, who was eighteen years old at the time, had been drinking beer and was a "little intoxicated."

Afterward, as Russell was walking to a friend's house, he was stopped by defendant, who was in uniform. When defendant questioned him as to where he was coming from, Russell lied and defendant allowed him to leave. Minutes later, defendant drove up to where Russell was walking and told him he fit the description of someone who had just committed a crime. Defendant arrested Russell, handcuffed him from behind, and placed him in the back of his patrol car.

When defendant would not tell Russell why he was being arrested, Russell called defendant a "dickhead." Defendant first told Russell to shut up, and then said "say it again." When Russell called defendant a "dickhead" a second time, defendant pulled the patrol car to the side of the road, got out of the car and opened the door where Russell was sitting. Defendant then punched Russell in the side of his face. Russell asked defendant why he did it, defendant said it was because Russell "was being an asshole, and if [Russell] did it again, [defendant] would do the same thing." Russell claimed he suffered a cut lip as a result of the punch.

Russell later pled guilty to attempted burglary and initially received a probationary sentence. After a violation of his probation, Russell was sent to prison for three years.

When defendant testified, he presented a different version of each incident. He claimed that, while he was questioning Joshua Baker, Hruska came between them, said "leave him alone," and shoved defendant in the chest, knocking him off balance. When defendant told Hruska he was under arrest, Hruska resisted and refused to comply with defendant's order to turn around and put his hands on the car. While defendant admitted he pulled out the pepper spray, or "mace," and attempted to use it, he claimed the "mace didn t work."

Defendant testified he was standing on the corner when Petaccio and Toto came out with a camera and began taking pictures of him. Petaccio then yelled at defendant to stop harassing the patrons. Defendant said he continued his patrol until he returned to the area outside the Fairview at closing time. He stood outside the doors of the Fairview on the handicap ramp as people exited, "moving people along." Defendant claimed Petaccio came to the door and said, "Sergeant Romeo, what, are you trying to get lucky tonight." Petaccio went inside, returned with a camera and began to take pictures of defendant. Defendant told Petaccio to "give it a rest, it's enough." Petaccio continued to take defendant's picture even as defendant walked towards him telling Petaccio "to give it a rest." Defendant claimed Petaccio's actions were affecting his ability to deal with the crowd, so he attempted to arrest Petaccio, but Petaccio pulled away. Defendant used an "arm bar" technique to get Petaccio's hands behind his back and the camera fell to the ground. Defendant claimed he put the camera in Petaccio's pocket and arrested him.

Defendant also testified regarding his encounter with Russell. He denied ever punching Russell in the face or mistreating Russell. When Russell was placed in the patrol car he "started getting a little agitated" and called defendant "a dickhead." Defendant claimed he responded only with "a chuckle."

As a result of the Hruska and Russell incidents, internal affairs (IA) investigations were conducted. Both investigations resulted in a finding of insufficient evidence to warrant disciplinary action against defendant.

C.

On March 8, 2010, the jury found defendant guilty of the sole count of the indictment, official misconduct in the second degree, N.J.S.A. 2C:30-2. On May 21, 2010, defendant was sentenced to a term of five years and the appropriate fines, penalties and assessments were imposed. The trial court denied the State's request to impose a five-year period of parole ineligibility, pursuant to N.J.S.A. 2C:43-6.5(a).

On appeal, defendant raises the following points:

POINT I

 

THE PROSECUTOR'S CONDUCT DURING SUMMATION, AT WHICH TIME HE BOLSTERED THE CREDIBILITY OF STATES' WITNESSES, DEPRIVED DEFENDANT OF A FAIR TRIAL UNDER THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ARTICLE I, PARAGRAPH 10 OF THE NEW JERSEY CONSTITUTION AND CONSTITUTES REVERSIBLE ERROR.

 

POINT II

 

THE TRIAL COURT COMMITTED REVERSIBLE ERRORS WHEN IT ALLOWED THE INTRODUCTION OF UNRELATED OTHER BAD ACTS UNDER N.J.R.E. 404(b).

 

a. THE COURT ERRED IN ALLOWING THE JURY TO HEAR 404(b) EVIDENCE REGARDING THE JOHN HRUSKA CASE AS IT WAS NOT PROVEN BY CLEAR AND CONVICING EVIDENCE AND WAS TOO REMOTE IN TIME IN VIOLATION OF COFIELD.2

 

b. THE COURT ERRED IN ALLOWING THE JURY TO HEAR 404(b) EVIDENCE REGARDING THE PETACCIO CASE.

 

c. THE COURT ERRED IN ALLOWING THE JURY TO HEAR 404(b) EVIDENCE REGARDING THE RUSSELL CASE.

 

 

 

POINT III

 

DEFENDANT WAS DENIED DUE PROCESS BY THE COURT'S REFUSAL TO ALLOW EVIDENCE OF THE OUTCOME OF THE INTERNAL AFFAIRS INVESTIGATIONS.

 

POINT IV

 

THE COURT ERRED IN PRECLUDING DEFENSE EXPERT, GEOFFREY R. LOFTUS, FROM TESTIFYING.

 

POINT V

 

THE COURT ERRED IN ADMITTING THE HRUSKA VIDEOTAPE/AUDIOTAPE FOR IMPEACHMENT PURPOSES.

 

POINT VI

 

THE COURT ERRED WHEN IT FAILED TO SANITIZE ADMITTED 404(b) EVIDENCE.

 

POINT VII

 

THE COURT ERRED IN ADMITTING REBUTTAL TESTIMONY OF SHERIFF GARY SHAEFFER ON USE OF FORCE ISSUES.

 

POINT VIII

 

THE COURT ERRED IN ADMITTING REBUTTAL CHARACTER EVIDENCE FROM CHIEF RYBICKI OF THE CAPE MAY COUNTY PROSECUTOR'S OFFICE.

 

POINT IX

 

THE COURT ERRED IN ADMITTING EXPERT TESTIMONY FROM WAYNE S. FISHER ON USE OF FORCE SINCE SUCH OPINION WAS NOT INCLUDED IN THE EXPERT REPORT.

 

POINT X

 

THE COURT ERRED IN DENYING DEFENDANT'S MOTION FOR A JUDGMENT OF ACQUITTAL.

POINT XI

 

THE JURY VERDICT IS AGAINST THE REASONABLE WEIGHT OF THE EVIDENCE AND HAS RESULTED IN A MANIFEST DENIAL OF JUSTICE UNDER THE LAW.

 

II.

 

A.

 

Defendant argues he is entitled to a new trial because the prosecutor's comments during summation improperly bolstered and vouched for the credibility of the State's law enforcement witnesses. We disagree.

Defense counsel attempted to convince the jury that Ramsey, Cubernot and Lillo testified falsely in an attempt to frame defendant to cover up the excessive use of force by Ramsey and Cubernot against Haege and McCullough:

The question in this case that I think you have to go through to reach a verdict, why would Ramsey, Cubernot and Lillo turn on a team mate and say and report him for kicking Haege and McCullough?

 

Counsel suggested to the jury that it had to decide

whether Ramsey, Cubernot, and then they bring Lillo on board, had a reason for making [defendant] the scapegoat and then embellishing the facts because when they started down that road, there was no turning back. Once they committed to turning [defendant] in, they had to justify everything they did and they had to look like the perfect cops and [defendant is] the bad guy.

 

The first challenged comment came in response to defense counsel's closing argument where he referred to Cubernot as "a seasoned detective" who had seen "decomposing bodies" and "child sexual assault victims." Counsel argued it was incredible that Cubernot, who had "just got done using force on Haege and hurting Haege," was "so stunned" by defendant's actions "that he can't say, Dave, yo, what are you doing, hold off, or grabbed him or not put him down."

In his summation, the prosecutor argued in response:

[Defense counsel] said Detective Cubernot is a seasoned detective, he sees mangled bodies and child abuse victims, and he's right about that, but that only helps prove my point . . . . Detective Cubernot is a seasoned detective. He's doing crazy cases, he's doing all kinds of cases. Do you really think, ladies and gentleman, that he would risk his career on a case involving a couple of car burglars? Not even close.

Defendant contends the prosecutor also improperly vouched for Lillo's credibility in the following remarks:

We put on our case, ladies and gentleman, warts and all. . . . We didn't try to improve it. We didn't try to embellish the witness's [sic] testimony. We didn't tell the witnesses what to say. If Lillo got up on the stand and said I don't remember, that's the answer, that's the truth and, frankly, Lillo's testimony was unassailed . . . he had no axe to grind against the defendant and nor could one ever be put in his hands.

 

Later, the prosecutor pointed out that, unlike Ramsey and Cubernot, who had used force against the suspects, Lillo

didn't have to fill out a use of force form. He didn't have to pin anything on the defendant. He didn't need a scapegoat. There's one pristine witness here that is positively beyond reproach, that nothing can be pinned on, that nothing could be scapegoated on: it's Roger Lillo.

 

"The 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). For that reason, a prosecutor's obligation to refrain from improper methods designed to produce a wrongful conviction is equal to his or her responsibility to use every legitimate means to secure a just one. State v. Frost, 158 N.J. 76, 83 (1999).

When considering allegations of prosecutorial misconduct based on a prosecutor's summation or questioning of witnesses, an appellate court should determine, first, whether the comments were improper and, second, whether they were so prejudicial as to deprive the defendant of the right to a fair trial. State v. Smith, 167 N.J. 158, 181 (2001); see State v. Marshall, 123 N.J. 1, 152-64 (1991), cert. denied, 507 U.S. 929, 113 S. Ct. 1306, 122 L. Ed. 2d 694-95 (1993). The appellate court also should examine any improper remarks in light of the evidence presented to the jury. State v. Blakney, 189 N.J. 88, 96-97 (2006).

If no objection was made, the appellate court should consider whether the remarks were of such a nature that they constituted plain error. State v. Feal, 194 N.J. 293, 307 (2008). Plain error is error "clearly capable of producing an unjust result." R. 2:10-2. In a close case, a substantial trial error is "more likely to tip the scales and affect the outcome." Blakney, supra, 189 N.J. at 97.

The prosecutor's comment that Cubernot would not "risk his career on a case involving a couple of car burglars" was a reference to the trial testimony of Ramsey that, immediately after the incident, Cubernot told him, in the presence of Sergeant Gallagher, that he was not going to get in trouble as a result of defendant's actions:

When I got into the car, Sergeant Gallagher was seated in the driver seat, I was seated in the front passenger seat. Detective Cubernot was seated behind Sergeant Gallagher in the rear of the unmarked police car. I turned around to Cubernot, I looked at him, he looked at me, I said what was that, and he said I don't know but I'm not getting in trouble for it. And Sergeant Gallagher at that point said what's going on, and we advised him that we had a problem and we would discuss it after we were finished with the investigation. . . . We did not get into detail about what had taken place.

After the incident, Ramsey testified that he "was upset about what happened," had a "heated conversation" with defendant and asked him "what did you do that for?" Ramsey testified that defendant attempted to justify kicking Haege and McCullough by asking him rhetorically, "those guys didn't deserve that?" Ramsey then responded "well, you know, I'm not going to lose my job or my house because you lost your head . . . ."

This testimony, if believed by the jury, would undermine defendant's theory that Cubernot and Ramsey conspired to frame defendant to cover their own excessive use of force. The testimony by Ramsey and Cubernot indicated that both officers were motivated to report defendant's conduct, not to cover up their own actions, but because not reporting defendant's excessive use of force might place their own careers in jeopardy. The prosecutor's reference to Cubernot's motivation was fair comment on this evidence and a proper response to defense counsel's conspiracy arguments. The prosecutor was entitled to ask the jury to draw reasonable inferences from that evidence. State v. Carter, 91 N.J. 86, 125 (1982). "Ultimately it was for the jury to decide whether to draw the inferences the prosecutor urged." Ibid.

Defendant did not object during trial to any of the prosecutor's comments he now claims denied him a fair trial. This failure to object, "render[s] it fair to infer . . . that in the context of the trial the error was actually of no moment." State v. Ingram, 196 N.J. 23, 42 (2008). We have reviewed the prosecutor's comments cited by defendant and find no evidence that "the prosecutor's conduct [was] clearly and unmistakably improper, [or] substantially prejudiced the defendant's fundamental right to have a jury fairly evaluate the merits of his . . . defense." State v. Harris, 181 N.J. 391, 495 (2004), cert. denied, 545 U.S. 1145, 125 S. Ct. 2973, 162 L. Ed. 2d 898 (2005).

B.

Defendant next claims the trial court committed reversible error when it admitted prior bad act evidence, under N.J.R.E. 404(b), from the Russell, Hruska and Petaccio incidents because the testimony did not establish defendant's motive in the current case and served solely to show defendant had a propensity to abuse suspects. In addition, defendant argues testimony relating to the Hruska incident was inadmissible because it was not proven by clear and convincing evidence and was too remote; the Petaccio case was not proven by clear and convincing evidence and was not relevant to a material issue; and the circumstances of the Russell incident were irrelevant to the jury's determination of any fact in issue.

"The underlying danger of admitting other-crime evidence is that the jury may convict the defendant because he is 'a "bad" person in general.'" State v. Cofield, 127 N.J. 328, 336 (1992) (quoting State v. Gibbons, 105 N.J. 67, 77 (1987)). Hence, even if the other-crime evidence is relevant to an issue at trial, it must still be excluded unless its probative value outweighs its prejudicial impact. Ibid. Indeed, "[t]he 'inflammatory characteristic of other-crime evidence . . . mandates a careful and pragmatic evaluation by trial courts, based on the specific context in which the evidence is offered, to determine whether the probative worth of the evidence outweighs its potential for undue prejudice.'" Id. at 334 (quoting State v. Stevens, 115 N.J. 289, 303 (1989)).

As N.J.R.E. 404(b) is a rule of exclusion, rather than inclusion, "it will be the exceptional, and not the usual, case where the evidence of other bad acts is substantially relevant for reasons other than proof of criminal character." Cofield, supra, 127 N.J. at 337. The standard set forth in Cofield enumerated a four-part test to admit N.J.R.E. 404(b) "other-crimes" evidence as follows:

(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.

 

[Id. at 338.]

 

The indictment charged that defendant,

acting with a purpose to injure another

. . . did purposely or knowingly kick in the head and thereby injure, Gilbert Haege and/or Louis McCullough . . . .

 

After conducting an extensive pre-trial hearing, the trial court found that all four prongs of the test for admissibility set forth in Cofield had been satisfied.

Under the first prong, evidence is relevant if it tends "to prove or disprove any fact of consequence to the determination of the action." N.J.R.E. 401; see State v. Covell, 157 N.J. 554, 565 (1999). When determining relevance, "the inquiry should focus on the 'logical connection between the proffered evidence and a fact in issue.'" Covell, supra, 157 N.J. at 565 (quoting State v. Hutchins, 241 N.J. Super. 353, 358 (App. Div. 1990)). "[E]vidence may be admitted for other purposes, such as proof of motive when motive is relevant to a material issue in dispute." State v. Collier, 316 N.J. Super. 181, 192 (App. Div. 1998), aff'd, 162 N.J. 27 (1999).

As to the first two prongs, the trial court found each incident was material, "remarkably [and] consistently" similar in kind, and reasonably close in time to the crime charged in the indictment. Defendant claimed he kicked the suspects to keep them from accessing the Leatherman tool and denied any intent to injure. Thus, defendant's intent was a material issue in dispute and the proffered evidence was relevant to that determination.

The third prong requires that evidence of other crimes or wrongs be "clear and convincing," and "'requires some showing that the person against whom the evidence is being used actually committed the other crime or wrong.'" State v. Koskovich, 168 N.J. 448, 485 (2001) (quoting State v. G.V., 162 N.J. 252, 275 (2000) (Coleman, J., concurring in part and dissenting in part)).

The trial court made individual credibility findings as to each incident: Petaccio's testimony was "clear" and "uncontroverted," and he "was not impugned in terms of credibility on cross-examination." Jason Russell's testimony was believable because he acknowledged he was drunk, high and that he taunted defendant. While the proofs that Russell suffered a cut upper lip were "less than clear," the court decided to admit that evidence because of an encounter between Russell and defendant a few years later when defendant admitted he punched Russell and said he would do it again.

As to the Hruska/Baker incident, the trial court relied on a video taken by a third party that captured defendant grabbing Hruska by the throat:

But what this Court saw time and again in that video was the defendant's left hand pressed up into the under jaw of [Hruska] continuously, [Hruska] standing erect, his arms straight at his side, his hands open, not clenched, he was not attempting to run, he was not striking the defendant, you are unable to hear any dialog between the two, but revealing to the Court as least was as the defendant reached behind his -- the defendant's back with his right hand to procure what ultimately turned out to be the pepper spray or mace, [Hruska] stood there looking at them. . . . Mr. Hruska taller than the defendant, stood there subdued, looking at the defendant, arms at his side, virtually not moving, while the defendant reached with his right arm -- Presumably he's right handed. -- to procure the pepper spray or mace and did not resist to my eye whatsoever, and did not move as best I could see, did not flinch until such time as the defendant sprayed Hruska in the eyes with the pepper spray and then immediately pulled him to the ground, and it is at that point by my recollection of the video that the crowd reacted. And the crowd reacted, in this Court's view, to the conduct of the defendant as opposed to any other identifiable dynamic on that video.

 

With these extensive credibility findings by the trial court, "[t]here is no reason for [this court] to substitute [its] judgment for that of the trial judge concerning his entirely reasonable conclusion" in this regard. State v. Angoy, 329 N.J. Super. 79, 87 (App. Div.), certif. denied, 165 N.J. 138 (2000). We accord deference "to those findings of the trial judge which are substantially influenced by his opportunity to hear and see the witnesses and to have the 'feel' of the case, which a reviewing court cannot enjoy." State v. Campfield, 213 N.J. 218, 229-230 (2013) (citations and quotations omitted). Thus, the third Cofield prong is satisfied.

Under the fourth prong, the court is to apply the balancing test of N.J.R.E. 403, which "excludes evidence if 'its probative value is substantially outweighed by the risk of . . . undue prejudice.'" Covell, supra, 157 N.J. at 568 (quoting N.J.R.E. 403). Specifically, "evidence claimed to be unduly prejudicial can be excluded only where its probative value 'is so significantly outweighed by [its] inherently inflammatory potential as to have a probable capacity to divert the minds of the jurors from a reasonable and fair evaluation' of the basic issues of the case." Ibid. (quoting State v. Thompson, 59 N.J. 396, 421 (1971)).

Defendant argues the evidence "smacks of prohibited propensity evidence and should have been disallowed." We have already determined the evidence did have legitimate probative value pertaining to defendant's intent and motive. We find no error in the judge's conclusion that the probative value of the other-crime evidence substantially outweighed any prejudicial effect of this evidence. The fourth prong of the Cofield test was satisfied. Therefore, the trial judge acted within his discretion in admitting this evidence.

Defendant's claim that the trial court failed to instruct the jury as to the limited purpose of the evidence, and the restricted significance the jury can attach to it, finds no support in the record. Prior to opening statements, the trial court provided both counsel with his proposed jury instructions as to the 404(b) evidence. Defendant's counsel had no objection to the proposed instructions. Then, before the testimony of each of the witnesses called by the State to provide 404(b) evidence, the trial court gave thorough limiting instructions to the jury that the evidence could only be considered for very specific purposes. Again, there were no objections by defendant to these instructions. When the State called Jason Baker to testify, the court gave the jury seven pages of instructions, with no objection by defendant. When Hruska and Petaccio testified, defendant's counsel agreed the 404(b) instruction did not have to be given in its entirety and the court provided a shortened version which conveyed the same limitations. There is no merit to defendant's claim that these instructions were inadequate. We also reject defendant's argument that the court erred when it failed to "sanitize" the 404(b) evidence.

C.

Defendant next argues he was denied due process by the court's refusal to allow evidence of the outcome of the IA investigations.

In response to the State's 404(b) evidence, defendant sought to introduce the results of IA investigations by the police and prosecutor's office into allegations that formed the basis of some of the prior bad acts.

Initially, the trial court refused to permit this testimony, but during trial, there was testimony from some of the officers involved in the investigations. Then, during cross-examination of defendant, the prosecutor questioned him regarding the IA investigations. The court agreed to permit evidence it termed the "net result" of the Hruska/Baker IA investigation, that is, whether any departmental charges were filed. When defendant pressed to include the results of the Russell IA investigation,3 the court explained why it was limiting the IA proofs to Hruska/Baker:

I've given our discussion late yesterday afternoon additional thought and the State's objection to allowing the defense to develop the net result of at least the Hruska internal affairs investigation which is that it arguably constitutes an opinion by someone, and presumably Captain McLaughlin, as to the propriety of the quantum of force exercised under the indicated circumstances, and the State argues that process is entirely the province of the jury.

 

. . . .

 

I understand [the State's objection]. And ordinarily that's a prevailing argument. The distinguishing consideration, at least in my mind, is the fact that the fact of the internal affairs investigation on Hruska was developed during cross-examination, and, as a matter of fairness, the defense should at least be permitted to develop very generally the net result of any internal affairs investigation on Hruska, which I understand to be no action taken, no disciplinary action imposed. That is not the case as relates to any of the other 404(b) episodes, and that not being the case, and the distinguishing consideration not being of record, that application is denied.

Defendant called Wildwood Police Captain Kevin McLaughlin who conducted the IA investigation of the Hruska/Baker incident. McLaughlin confirmed that no disciplinary action "whatsoever" was taken against defendant as a result of the complaints filed by Hruska and Baker.

McLaughlin also testified that he teamed with Lieutenant Marie Hayes, who was assigned to the Prosecutor's Office, to investigate Jason Russell's complaint that defendant had punched him while he was handcuffed. McLaughlin and Hayes interviewed Russell two days after the incident and McLaughlin testified he examined Russell's mouth area and saw no evidence "consistent with [Russell] being punched in the face."

Defendant called eighteen character witnesses to testify they knew him to be truthful and honest. On rebuttal, the State proposed calling Cape May County Chief of Detectives James Rybicki, to testify as to defendant's adverse character traits. The trial court conducted a brief hearing pursuant to N.J.R.E. 104. Rybicki testified he had known defendant for approximately ten years and that his reputation for integrity among the law enforcement community was not good ("when I hear the name Dave Romeo, a red flag goes up because of the reputation that he has"). On cross-examination, Rybicki testified he had participated in IA investigations into defendant's conduct and has some familiarity with other cases defendant investigated and there was a "inference that he's not telling the whole truth."

The trial court ruled that since Rybicki had been involved in both the Hruska/Baker and Russell IA matters, and his "understanding of [defendant's] reputation in the community is predicated upon cases that [Rybicki] was involved in internal affairs investigations," the defense could bring out the net result of the Russell matter as well.

When the State called Rybicki at trial, the prosecutor questioned him about the Hruska/Baker and Russell IA investigations. Rybicki testified that after both investigations were concluded there was "insufficient evidence" to discipline defendant. Rybicki also testified that defendant did not enjoy a good reputation for integrity in the law enforcement community.

Defendant's claim that he was denied due process by the court's refusal to allow evidence of the outcome of the IA investigations is without merit. Through the testimony of McLaughlin and Rybicki, the jury learned the IA investigations into defendant's conduct in the Hruska/Baker and Russell incidents did not lead to any disciplinary action against defendant due to insufficient evidence. The trial court placed appropriate limitations on the amount of information which could be elicited from the witnesses regarding the IA investigations to avoid "trying internal affairs investigations here in this criminal trial."

We also reject defendant's claim that the trial court erred in permitting Rybicki to present testimony as to defendant's reputation on the State's rebuttal case. In calling eighteen character witnesses, defendant placed his reputation for truth and honesty before the jury. Several of these witnesses were current or former law enforcement officers. N.J.R.E. 608(a) governs the admission of character evidence and provides:

The credibility of a witness may be attacked or supported by evidence in the form of opinion or reputation, provided, however, that the evidence relates only to the witness' character for truthfulness or untruthfulness, and provided further that evidence of truthful character is admissible only after the character of the witness for truthfulness has been attacked by opinion or reputation evidence or otherwise. Except as otherwise provided by Rule 609 and by paragraph (b) of this rule, a trait of character cannot be proved by specific instances of conduct.

 

Character may be established through reputation. N.J.R.E. 405 provides:

(a) Reputation, opinion, or conviction of crime. -- When evidence of character or a trait of character of a person is admissible, it may be proved by evidence of reputation, evidence in the form of opinion, or evidence of conviction of a crime which tends to prove the trait. Specific instances of conduct not the subject of a conviction of a crime shall be inadmissible.

 

(b) Specific instances of conduct. -- When character or a trait of character of a person is an essential element of a charge, claim, or defense, evidence of specific instances of conduct may also be admitted.

 

"[A] lay opinion regarding a prior witness' bad character for truthfulness will be admissible if it is founded upon the character witness' perceptions of the prior witness and will assist the jury in determining the fact in issue." Fitzgerald v. Stanley Roberts, Inc., 186 N.J. 286, 310 (2006). Before deciding to admit Rybicki's testimony, the trial court conducted a Rule 104 hearing and placed strict limitations on what testimony could be elicited from him. We grant "substantial deference to the evidentiary rulings of a trial judge," id. at 319, and will not disturb such rulings absent an abuse of discretion. Hisenaj v. Kuehner, 194 N.J. 6, 12 (2008). Thus, our review of evidentiary decisions implicates the abuse of discretion standard, where a reversal will occur only if the trial judge's decision was a "'clear error of judgment.'" Estate of Hanges v. Metro. Prop. & Cas. Ins. Co., 202 N.J. 369, 383-84 (2010) (quoting State v. Koedatich, 112 N.J. 225, 313 (1988), cert. denied, 488 U.S. 1017, 109 S. Ct. 813, 102 L. Ed. 2d 803 (1989)). We find no abuse of discretion in admitting Rybicki's limited testimony as to defendant's reputation on the State's rebuttal case.

D.

Defendant next claims the court erred in precluding the expert testimony of Geoffrey R. Loftus. We disagree. In a December 15, 2009 report, Loftus described himself as an "eyewitness expert." He conceded no independent knowledge of the case and was informed of the facts solely by reference to discovery materials. Loftus understood the primary issue in the case was defendant's "rationale" for kicking McCullough and Haege, and concluded defendant's "guilt or innocence revolves around the credibility of the eyewitness reports - in particular the reports of the witnesses who did or did not perceive the presence of a Leatherman tool at the arrest scene and/or what they later remembered about it." Loftus planned to offer testimony as to "factors relevant to eyewitness perception and eyewitness memory."

The State moved in limine to bar the testimony of Loftus and preclude the admission of his report, arguing Loftus's testimony would invade the province of the jury because he would testify which witnesses were credible "based on his expertise and perception and memory." Defendant argued that Loftus's testimony was admissible because it would involve the scientific bases of relevant aspects of perception and memory, and that Loftus had previously been accepted as an expert on perception.

The trial court quoted Loftus's report, stating the main purpose of an expert in eyewitness testimony was "to describe to the jury the scientifically understood circumstances upon which competence should or should not be taken as a predictor of accuracy." The court granted the State's motion because an expert may not testify regarding a witness's credibility and "Loftus and the defense seem to be intending to present evidence tailored to demonstrate the lack of credibility of other eyewitnesses who happen to be the State's witnesses."

Under N.J.R.E. 702, a qualified expert may offer an opinion "[i]f scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue." To be admissible, the subject matter of the expert's testimony must be relevant and "beyond the understanding of the average person of ordinary experience, education, and knowledge." State v. Odom, 116 N.J. 65, 71 (1989). The decision whether to admit expert evidence lies within the trial court's discretion. State v. Torres, 183 N.J. 554, 567 (2005).

It is improper "to present expert testimony about straightforward but disputed facts." State v. Sowell, 213 N.J. 89, 100 (2013). In Sowell, the Court held that the State could not introduce expert testimony to opine that an exchange of narcotics occurred during a prison visit when the visitor kissed the inmate and dropped an object into an open bag of potato chips that the inmate held. Id. at 103-06. It was unnecessary for an expert "to explain what the jury could grasp on its own: whether or not a drug transaction occurred." Id. at 102.

Loftus's report indicates that he intended to provide "information to the jury about the scientific bases of various relevant aspects of perception and memory," so the jury could "use this information as a tool to help them to carry out their job of deciding who is right and who is wrong." This type of evidence usurps the jury's responsibility to assess credibility. The critical issue in this case, which arose from sharply disputed facts, was which witnesses were truthful, rather than memory and perception of those witnesses.

Experts may not opine on the credibility of a particular eyewitness. State v. Henderson, 208 N.J. 208, 297 (2011); see also State v. Frisby, 174 N.J. 583, 595 (2002); State v. W.B., 205 N.J. 588, 613 (2011). It was the jury's responsibility to determine which testimony was credible, and that determination would not have been aided by testimony regarding memory and perception. Thus, we find no abuse of discretion with the trial court's decision precluding the testimony of Loftus.

E.

Defendant argues the court erred when it denied his motion for acquittal because a reasonable jury could not find him guilty beyond a reasonable doubt. This argument has no merit.

At the conclusion of trial, defendant moved for acquittal on the basis that "the credible evidence" showed the Leatherman was on the ground within close physical proximity of the two suspects. The court denied the motion because a jury could find, beyond a reasonable doubt, that defendant's conduct was unauthorized and his purpose was to injure the suspects.

When examining a motion for judgment of acquittal at the close of the State's case, a court must determine

whether, 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).]

 

The same standard is applicable to a motion for dismissal filed at the close of all the evidence. R. 3:18-1; State v. Morrison, 188 N.J. 2, 13 (2006). When reviewing such motions, a court "may not consider any evidence adduced by the defense in determining if the State has met its burden as to all elements of the charged crime." Pressler & Verniero, Current N.J. Court Rules, comment 1 on R. 3:18 (2013).

Defendant argues the court should have granted the motion because "[t]he testimony revealed that there was indeed a Leatherman knife between the suspects as a scuffle ensued between the suspects and defendant's fellow officers." He argues the prior bad acts evidence "convoluted the case" and distracted the jury from answering the issues of whether there was a loose weapon in close proximity to the suspects and, if so, whether defendant was justified in using the force he did. None of defendant's arguments dispute the trial court's finding or assert the State failed to prove the elements of the crime.

Defendant's appellate argument ignores the parameters of the Reyes standard. No part of the State's case supported the claim that a weapon was on the ground between the two suspects prior to defendant's actions. To the contrary, Cubernot testified that he discovered the Leatherman for the first time when he searched McCullough after he was brought to Flanigan's patrol car and after defendant had kicked both suspects. The testimony provided by defendant and Flanigan regarding the location of the knife was irrelevant to the trial court's determination of this motion.

F.

We find the remaining arguments presented by defendant lack sufficient merit to warrant additional discussion. R. 2:11-3(e)(2).

III.

In its cross-appeal the State raises the following point:

STATE V. RICE,4 DECIDED AFTER THE STATE FILED ITS BRIEF IN THIS CASE, NOW MAKES CLEAR THAT THE SENTENCING COURT ERRED IN WAIVING THE STATUORILY-MANDATED PERIOD OF PAROLE INELIGIBILITY.

 

Under N.J.S.A. 2C:43-6.5(a), "a person who serves or has served as a public officer or employee under the government of this State, or any political subdivision thereof, who is convicted of a crime that involves or touches such office or employment" and is convicted of a second-degree crime, "shall be sentenced to a mandatory minimum term of imprisonment without eligibility for parole" of five years. However, the statute also contains a waiver provision:

If the court finds by clear and convincing evidence that extraordinary circumstances exist such that imposition of a mandatory minimum term would be a serious injustice which overrides the need to deter such conduct in others, the court may waive or reduce the mandatory minimum term of imprisonment required by subsection a. of this section. In making any such finding, the court must state with specificity its reasons for waiving or reducing the mandatory minimum sentence that would otherwise apply.

 

[N.J.S.A. 2C:43-6.5(c)(2).]

 

In Rice, decided after defendant was sentenced in this case, we issued the first published decision construing the waiver provision of N.J.S.A. 2C:43-6.5(c)(3). We compared the "serious injustice" standard of the waiver statute with the case law interpretation of the same language in N.J.S.A. 2C:44-1(d), which governs the determination of whether the presumption of imprisonment is overcome. Id. at 386. That statute specifies a court may consider "the character and condition of the defendant" in its decision whether to impose imprisonment. N.J.S.A. 2C:44-1(d).

We concluded that, while the Legislature did not use those words in the waiver statute, "it nevertheless intended that the sentencing court must engage in a similar analysis to that required by N.J.S.A. 2C:44-1(d)." Rice, supra, 425 N.J. Super. at 388-89. To find that the mandatory minimum should be reduced or waived,

a judge must determine "by clear and convincing evidence" that "extraordinary circumstances exist" based upon the individual defendant before the court, and the "imposition of [the statutory] mandatory minimum term would be a serious injustice which overrides the need to deter such conduct in others." N.J.S.A. 2C:43-6.5(c)(2).

 

[Id. at 389.]

 

The trial judge "may consider the circumstances of the case and the defendant's role in the commission of the crime," with the focus on "whether the 'extraordinary circumstances' presented by an individual defendant outweigh the legislative determination that the need to deter others from committing certain crimes 'involv[ing] or touch[ing] . . . [public] office or employment' requires imposition of the statutory mandatory minimum." Ibid. (quoting N.J.S.A. 2C:43-6.5(a) and (c)(2)) (alteration in original). It will be "justified only in 'the extraordinary or extremely unusual case where the human cost of imprisoning a defendant [for the statutory mandatory minimum and] for the sake of deterrence constitutes a serious injustice.'" Ibid. (quoting State v. Evers, 175 N.J. 355, 392 (2003)).

Recognizing that no published decision existed on the subject, the trial court here, engaged in a well-reasoned examination of the meaning of the serious injustice standard to allow waiver of the mandatory minimum term of imprisonment in N.J.S.A. 2C:43-6.5(c)(2). The trial court applied the same reasoning employed by the panel in Rice and it reached the same conclusion that, in determining the applicability of the waiver, it was required to engage in an analysis similar to the one required to find that the presumption of imprisonment had been overcome. First, the court determined the aggravating and mitigating factors and found the existence of aggravating factor one, N.J.S.A. 2C:44-1(a)(1), the nature and circumstances of the offense and the role of the actor indicated it was committed in an especially heinous, cruel or depraved manner. Defendant had asserted force that "exceeded that degree of force minimally required to constitute excess"; he applied this excessive force to more than one victim, with "separate kicks, separate victims"; and the excessive force was premeditated. The court assigned moderate weight to aggravating factor one.

The court also found the existence of aggravating factor two, N.J.S.A. 2C:44-1(a)(2), the gravity and seriousness of the harm inflicted on the victim, because the harm exceeded the minimum degree of force that would constitute an element of the offense. Defendant kicked Haege in the face at least once and he suffered scrapes to his cheek and a scar above his eye. McCullough was kicked twice and suffered a bruise and discoloration under his eye. However, the court assigned only slight weight to this factor, "given the injuries likely sustained by each victim during the actual arrests."

The court found the existence of aggravating factor three, N.J.S.A. 2C:44-1(a)(3), the risk that defendant would commit another offense, based on the other-crimes evidence and that defendant had exhibited no remorse "until today." That factor was given slight weight because of the nature of the evidence and "the personnel-related information."

The court found the existence of aggravating factor nine, N.J.S.A. 2C:44-1(a)(9), the need for deterrence. It relied on its findings for aggravating factor three, and the need for general deterrence of unlawful use of force by law enforcement officers. It gave extraordinary weight to that factor, "far more weight . . . than any other single factor, aggravating or mitigating."

The court found the existence of mitigating factor seven, N.J.S.A. 2C:44-1(b)(7), that defendant had no prior criminal history and had led a law-abiding life, and this factor was assigned substantial weight. It found the existence of mitigating factor eight, that defendant's conduct was the result of circumstances unlikely to recur, N.J.S.A. 2C:44-1(b)(8), because the offense occurred within the scope of defendant's employment which had been terminated. This factor was given moderate weight.

The court found the existence of mitigating factor nine, N.J.S.A. 2C:44-1(b)(9), that defendant's character indicated he was unlikely to commit another offense, and it assigned "substantial weight to that factor." The court found the existence of mitigating factor ten, N.J.S.A. 2C:44-1(b)(10), that defendant was particularly likely to respond affirmatively to probationary treatment, because it believed defendant "would do well." The court also found mitigating factor eleven, N.J.S.A. 2C:44-1(b)(11), that defendant's imprisonment would entail excessive hardship on his family and it assigned substantial weight to that factor.

In balancing the factors, the court found that "[c]onsidered cumulatively," the mitigating factors "exist to such extraordinary degree" that they "greatly exceed" the aggravating factors:

That extraordinary degree renders imposition of any statutory minimum mandatory period of parole ineligibility a serious hardship which overrides the need to deter . . . others.

 

The court found defendant had no prior criminal history, was married with two children, was a lifelong Wildwood resident, had served fourteen years with its police department, and experienced various medical problems. He was the sole support of his family and his wife had completed only one semester of nursing classes. Furthermore, "[i]mposition of a minimum statutory period of mandatory parole ineligibility pursuant to 2C:43-6.5a [sic] on this record would, in this Court's view, constitute disproportionate sentence to the crime committed." The court waived the mandatory parole ineligibility period "in its entirety" and sentenced defendant to a five-year term.

In Rice, we concluded the exercise of a sentencing court's discretion is guided by different standards when considering the downgrade provisions of N.J.S.A. 2C:44-1(f)(2) and the waiver provision of N.J.S.A. 2C:43-6.5(c)(2):

Under N.J.S.A. 2C:44-1(f)(2), when the court considers imposing a sentence one degree lower than the crime for which a defendant has been convicted, it must apply a two-step process. The judge must be clearly convinced that the mitigating factors substantially outweigh the aggravating ones and that the interest of justice demands a downgraded sentence.

 

[Rice, supra, 425 N.J. Super. at 384.]

 

Conversely, under N.J.S.A. 2C:43-6.5(c)(2), the Legislature adopted a standard different than the "interest of justice" utilized in the downgrade provisions of the Code. Instead, in order to "waive or reduce" the mandatory minimums required, the judge must find "extraordinary circumstances exist . . . [such that] imposition of [a] mandatory minimum term would be a serious injustice which overrides the need to deter such conduct in others." Id. at 389.

The trial court's finding that imposition of a statutory period of mandatory parole ineligibility would "constitute disproportionate sentence in relationship to the crime committed," was inadequate to satisfy the higher standard of "serious injustice" required to reduce a period of parole ineligibility.

On remand, the sentencing court must determine whether there is "clear and convincing evidence" that "extraordinary circumstances exist" based upon the individual defendant before the court, and that "imposition of [the statutory] mandatory minimum term would be a serious injustice which overrides the need to deter such conduct in others." N.J.S.A. 2C:43-6.5(c)(2). Additionally, "the court must state with specificity its reasons for waiving or reducing the mandatory minimum sentence that would otherwise apply." Ibid.

W

e affirm defendant's conviction but remand for resentencing consistent with this opinion. We do not retain jurisdiction.

1 At trial, the tool was referred to as a "Leatherman" and we will adopt that reference.

2 State v. Cofield, 127 N.J. 328 (1992).

3 There was no IA investigation of the Petaccio matter.

4 State v. Rice, 425 N.J. Super. 375 (App. Div.), certif. denied, 212 N.J. 431 (2012).