STATE OF NEW JERSEY v. ANGELIQUE STUBBS

NOT FOR PUBLICATION WITHOUT THE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.

ANGELIQUE STUBBS,

Defendant-Appellant.

_______________________________

December 9, 2015

Submitted April 14, 2015 Decided

Before Judges Ostrer and Sumners.

On appeal from the Superior Court of New Jersey, Law Division, Cumberland County, Indictment No. 07-07-0618.

Joseph E. Krakora, Public Defender, attorney for appellant (Frank M. Gennaro, Designated Counsel, on the brief).

Jennifer Webb-McRae, Cumberland County Prosecutor, attorney for respondent (G. Harrison Walters, Assistant Prosecutor, of counsel and on the brief).

The opinion of the court was delivered by

OSTRER, J.A.D.

This case returns to us after remand. State v. Stubbs, 433 N.J. Super. 273 (App. Div. 2013).1 Defendant Angelique Stubbs was convicted by a jury, along with her husband at the time, Jules Stubbs, of fourth-degree possession of marijuana, N.J.S.A.2C:35-10(a)(3); second-degree possession of marijuana with intent to distribute, N.J.S.A.2C:35-5(a)(1) and N.J.S.A.2C:35-5(b)(10)(b); and third-degree possession of marijuana with intent to distribute within 1000 feet of a school, N.J.S.A.2C:35-7.

We reviewed the facts at length in our prior opinion. Suffice it to say here that defendant was home with her three young children early one evening when three men, one of whom was armed, invaded her residence in search of drugs and money. Defendant testified that she told the intruders there were neither drugs nor money, as they ransacked the home. In response to a dropped 911 call that defendant made, the police responded to the home. The police ultimately safely extracted defendant and the children, and arrested the three intruders. Searches of the house and the intruders produced a large amount of marijuana and currency. Jules Stubbs returned to the home after the police response, and attempted to "take the blame for everything." He was arrested at the scene. Defendant was charged after a station-house interview.

A key part of the State's case against Angelique Stubbs was a currency seizure report (CSR) that she signed. The form stated the denominations of $4831 in cash seized from her home. The form identified defendant as the "claimant." The State contended that defendant's signature evidenced her claim of ownership of the cash. The State presented expert testimony that the cash was connected to drug activity. Thus, defendant's alleged ownership of the cash implicated her in the drug activity.

We held that the CSR constituted an adoptive admission pursuant to N.J.R.E.803(b)(2). Stubbs, supra, 433 N.J. Super.at 285. In order to introduce an adoptive admission, we held that "'the party to be charged must be aware of and understand the content of the statement allegedly adopted,'" and "'it must be clear that the party to be charged with the adoptive admission unambiguously assented to the statement.'" Ibid. (quoting McDevitt v. Bill Good Builders, Inc., 175 N.J.519, 529-30 (2003) (additional internal quotation marks and citation omitted)). The substance of the admission in this case consisted not only of the text of the CSR, which vaguely identified defendant as "claimant," but the explanation provided at trial by Millville Police Detective Joseph Hoydis. Although Hoydis did not specifically recall his conversation with defendant, he testified that when he presented a person with the CSR, as he did on numerous occasions as an evidence officer, he uniformly explained that the form meant that the signer was claiming the money described therein, so that it might be returned to the signer at the conclusion of the case.

We held it was plain error for the trial court to admit the CSR without first holding a preliminary hearing pursuant to N.J.R.E.104(c), to determine the CSR's admissibility. Stubbs, supra, 433 N.J. Super.at 284-85. In particular, the State was required to demonstrate, by a preponderance of the evidence, that defendant was aware of and understood Hoydis's explanation of the form, and that by signing the form, she unambiguously assented to it. Id.at 285-87.

We noted that defendant denied any recollection of Hoydis's explanation of the form, and stated she signed the form without reviewing it. Id.at 284. We observed that there was no evidence at trial regarding defendant's demeanor when she signed the form; whether she was already in custody; and whether she signed it after deliberation, or did so swiftly without pause. Id.at 286-87.

Judge Cristen P. D'Arrigo, who did not preside over the 2013 jury trial, conducted the remand hearing. The State presented testimony from Hoydis, as well as Millville Police Officer Jennifer Satero,2and now-retired Millville Police Officer James Grone. All three witnesses previously testified at the trial. The State also introduced into evidence the video recording of defendant's station-house statement, which was made shortly before she signed the CSR.

Defendant and her mother also testified at the remand hearing. Most significantly, defendant recalled the conversation with Hoydis regarding the CSR, although she testified at trial she had no such recollection. Defendant admitted that Hoydis explained to her that she would get the money back if subsequent proceedings concluded in her favor: "He [Hoydis] just came in and said mentioned brought me this form and told me what it was, and said that, 'This is the money we found, and just sign it. And, if nothing comes of it, you'll get it back.'" (Emphasis added). Minimizing her admission, defendant later testified that Hoydis's assurance, "you'll get it back" did not mean anything to her at the time. She insisted, "I just signed it because I thought I was getting out of there . . . ."

Hoydis testified consistently with his trial testimony. Although he did not specifically recall his conversation with defendant, he was confident that, consistent with his usual practice, he told defendant, "This is the money we seized from your house. . . . Will you sign it as a claimant? . . . [I]f you beat us in court[,] if the case gets dismissed, whatever, you'll get your money back."

Satero testified on remand that she witnessed Hoydis present the CSR to defendant. It occurred in a separate processing room, after Satero completed her recorded interview of defendant. We note that at trial, Satero was not asked to address her observation of defendant and Hoydis. She testified on remand that she recorded her observation in her police report, prepared shortly after the incident.3 Satero testified that defendant was calm, coherent, and not hysterical, and gave no indication of being incapable of understanding what Hoydis was presenting to her. Defendant admitted on remand that Satero was present with Hoydis, but defendant asserted that Satero did not stay.4

In a cogent written opinion, Judge D'Arrigo held that the State established both that defendant was aware of and understood the content of the CSR, as Hoydis described it, and that she unambiguously assented to it by signing the form. The judge found the police witnesses to be more credible than defendant, whose testimony was subject to inconsistencies. The court stated

Here, the question is whether by signing that CSR, Defendant adopted the position that she was the owner of the monies referenced therein.

With regard to the first requirement that the State must establish that Defendant was aware of and understood the content of the statement allegedly adopted, this court looks at several relevant factors. First and foremost, the CSR itself clearly references the items both in amount and in particular denominations. The first section identifies the "claimant" as indicated. Defendant here is a well-educated and mature person. The term claimant is defined in Merriam-Webster's dictionary as follows "a person who believes that he or she has a right to something (such as an amount of money)" and "a person who claims something." Merriam-Webster's Collegiate Dictionary (11th ed. 2008). The dictionary goes on to further define claimant as "one that asserts a right or title." Id.

. . . .

. . . First and foremost, at the 104(c) hearing, Defendant now indicated that she does recall her conversation with Detective Hoydis. Defendant testified that she recalls Detective Hoydis reviewing the CSR with her and confirmed in large measure the context of that conversation, consistent with Detective Hoydis' testimony of his common practice with CSRs. Specifically, Defendant acknowledged that Detective Hoydis explained the CSR to her and that he stated that if the charges went away, then the money would be returned to Defendant.

Furthermore, the testimony of the officers who had direct contact with Defendant that evening demonstrated that she was at no time hysterical or out of control. . . .

Likewise, the interrogation recording shows that Defendant's testimony after being Mirandized was measured and careful to avoid any statement that might inculpate her regarding the drugs and money within the home. . . .

At the 104(c) hearing, the defense introduced the Attorney General directive, outlining the procedures that must be followed whenever a New Jersey law enforcement agency intends to seize currency. . . .

. . . .

Neither Detective Hoydis nor Defendant was aware of the existence of the directive, let alone the discrepancy between the directive and the CSR utilized. Absent any knowledge of the directive, the issue becomes not the intent behind the CSR, but the plain meaning of the CSR and Defendant's understanding at the time she signed it.

Defendant knew that the money taken from her home was considered by the police and everyone else involved, including the intruders, to be contraband of the same importance if not the same nature as the drugs. Defendant was properly Mirandized and was alerted to the nature of the police investigation of both the home invasion and of her involvement in the possession and potential distribution of the drugs.

. . . .

The court finds that Defendant was aware of and understood the plain meaning of the CSR as a claim form and that she unambiguously assented to the contents of that document when she signed it. The CSR is admissible.

On appeal, defendant presents the following point for our consideration

THE STATE FAILED TO ESTABLISH THAT THE CASH SEIZURE REPORT WAS ADMISSIBLE AS AN ADOPTIVE ADMISSION.

We review the trial court's evidentiary rulings for an abuse of discretion. Hisenaj v. Kuehner, 194 N.J.6, 12 (2008). Moreover, factual findings resulting from a N.J.R.E.104 hearing are entitled to deference. State v. Goodman, 415 N.J. Super. 210, 225 (App. Div. 2010), certif. denied, 205 N.J.78 (2011).

Having carefully considered defendant's arguments in light of the record and applicable principles of law, we affirm substantially for the reasons set forth in Judge D'Arrigo's well-reasoned opinion. Judge D'Arrigo's factual findings are supported by sufficient, credible evidence in the record.

We add the following comments. Defendant relies on Hoydis's lack of specific recall of his conversation with defendant in support of her argument that the State failed to prove that Hoydis explained the CSR at all, let alone that defendant unambiguously assented to it. We disagree. The remand court credited Hoydis's testimony that he uniformly explained the CSR to any person whose currency was seized. Moreover, defendant herself admitted, contrary to her trial testimony, that Hoydis explained that she would get the money back. The remand judge was unpersuaded by defendant's testimony that Hoydis's explanation meant nothing to her. In sum, there was sufficient credible evidence in the record to support the remand court's finding that defendant understood that the form amounted to a claim of ownership of the described currency.

Defendant also contends that she was in no state of mind to understand Hoydis's explanation, or to knowingly sign the form. However, there was sufficient evidence in the record to support the remand court's finding based in part on its review of defendant's video-recording that defendant's demeanor and mental status did not interfere with her understanding of what her signature on the CSR signified, and she had the intelligence to understand the CSR's content.5 Notably, defendant did not testify at the remand hearing that she was too distraught or upset to understand what Hoydis was saying. Rather, she claimed that she signed the CSR because she thought it was a formality, before she was released to go home.

Defendant also highlights discrepancies in the State's evidence regarding why the CSR pertaining to the $4831 was presented to defendant, and not her husband. If the police had no reasonable basis to present the CSR form to defendant, one may argue the police intended to induce defendant to claim ownership of property that belonged to another. If police had such a motivation, it arguably would not have disclosed the true import of signing the form. We recognize that Satero testified that one of the arrestees, Wright, told her in a station-house interview after she interviewed defendant, that defendant gave her the money.6 That would have been too late to serve as the basis for Hoydis presenting the CSR to defendant. But, Hoydis testified at trial, and at remand, that he was told at the house hours earlier, by a "case agent or . . . supervisor," that the money belonged to defendant. There was sufficient evidence at the hearing to support presenting the form to defendant.

Finally, defendant misplaces reliance on the Attorney General directives. Defendant argues that pursuant to those directives, the purpose of the CSR is to properly account for and secure seized funds. Defendant takes issue with the trial court's finding that the form also serves a second purpose, to assure the return of funds to the "claimant" as owner. Defendant notes that the Attorney General directives do not define "claimant."

It ultimately is not dispositive whether Hoydis was aware of the Attorney General directives he was not or whether the CSR was intended to serve as an adoptive admission against the interests of a defendant. The issue is whether the State established by a preponderance of the evidence that defendant's signature on the form represented her adoptive admission. It did so to the satisfaction of the remand court. Consequently, there was no error in presenting the CSR to the jury.

Affirmed.

1 We consolidated the appeals of Angelique Stubbs, No. A-1199-10, and Jules Stubbs, No. A-2942-10, for the purposes of our opinion, which we excerpted for publication. The Supreme Court denied Jules Stubbs's petition for certification. State v. Stubbs, 217 N.J. 293 (2014), but deferred action on Angelique Stubbs's petition pending resolution of the instant appeal. State v. Stubbs, Order, C-840 (Sept. 15, 2014). As this appeal pertains only to Angelique Stubbs, we refer solely to her as "defendant."

2 We referred to Officer Satero as Officer Gentile in our prior opinion.

3 The report was admitted into evidence at the hearing, but is not included in the record before us.

4 We recognize that in our initial opinion, we stated that defendant's signature was witnessed by another officer, Carl Heger. Stubbs, supra, 433 N.J. Super. at 284. Hoydis clarified at the remand hearing that Heger witnessed the counting of the money at the Stubbs home, and not the presentation of the CSR to defendant at the station-house.

5 Given defendant's failure to include the video-recording in the record on appeal, we have no basis to review the remand court's assessment of defendant's demeanor during her interview. See R. 2:6-1(a)(1) (stating that the appendix "shall contain . . . such other parts of the record . . . as are essential to the proper consideration of the issues. . . ."); Cmty. Hosp. Grp., Inc. v. Blume Goldfaden, 381 N.J. Super. 119, 127 (App. Div. 2005) ("Nor are we obliged to attempt review of an issue when the relevant portions of the record are not included.").

6 We note that the circumstances of the seizure of the funds was disputed. Satero testified that she seized the cash in a search incident to arrest of Wright. Defendant testified at trial and on remand that a different intruder, Joseph Houchens, found cash in the master bedroom closet. At trial, she claimed that her husband used that closet; and she kept her clothes in a walk-in closet in another room. However, on remand, the State introduced photographs not included in the record before us depicting women's clothes in the master bedroom closet.