STATE OF NEW JERSEY v. JORGE TORRES
Annotate this CaseNOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
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Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-4894-14T2
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
JORGE TORRES,
Defendant-Appellant.
_______________________________________
Submitted December 12, 2017 – Decided February 5, 2018
Before Judges Yannotti, Carroll and Leone.
On appeal from Superior Court of New Jersey,
Law Division, Hudson County, Indictment No.
11-03-0418.
Joseph E. Krakora, Public Defender, attorney
for appellant (Michele A. Adubato, Designated
Counsel, on the brief).
Esther Suarez, Hudson County Prosecutor,
attorney for respondent (Frances Tapia Mateo,
Assistant Prosecutor, on the brief).
PER CURIAM
Defendant was charged in Hudson County Indictment No. 11-03-
0418 with first-degree murder of Edwin Acosta,
N.J.S.A. 2C:11-
3(a)(1) or
N.J.S.A. 2C:11-3(a)(2).1 Defendant was tried before a
jury, which found him not guilty of murder and aggravated
manslaughter,
N.J.S.A. 2C:11-4(a)(1), but guilty of the lesser-
included offense of second-degree reckless manslaughter,
N.J.S.A.
2C:11-4(b)(1). The trial court sentenced defendant to six years
of incarceration and required that he serve eighty-five percent
of that term, pursuant to the No Early Release Act,
N.J.S.A. 2C:43-
7.2. Defendant appeals from the judgment of conviction dated
January 7, 2015. We affirm.
I.
At trial, evidence was presented, which indicated that in
October 2010, defendant was working as a bartender at a bar in
Union City, where he had been employed, from time to time, for
more than twenty years. Acosta was a regular patron of the bar.
Previously, defendant and Acosta met at the bar and had several
sexual encounters thereafter.
On October 2, 2010, at around 12:30 a.m., Acosta arrived at
the bar, and it appeared he was under the influence of alcohol or
drugs. Acosta spent time with defendant until the bar closed. They
sat together on a sofa behind the bar, drank beer, hugged, and
1
We note that defendant is a male, but identifies as a woman and
refers to himself as Sandra. Because defendant has never legally
changed his name and was identified as Jorge Torres in the
indictment, we refer at times to defendant as "he."
2 A-4894-14T2
were affectionate with each other. After the bar closed, the
owner's stepson gave defendant, Acosta, and one of the bar's
dancers a ride home. Along the way, the group stopped at another
bar, where defendant and Acosta picked up more beer. They also
stopped at a bank and Acosta withdrew money from a cash machine.
Defendant and Acosta were dropped off at defendant's apartment
shortly before 3:00 a.m.
Later that day, at approximately 5:35 p.m., Officer Mauro
Astudillo of the Union City Police Department and emergency medical
technicians (EMTs) responded to defendant's apartment after
receiving a report of a possible sudden death at that location.
Defendant met Astudillo and the EMTs at the door and led them to
the bedroom, where they found a man, who was later identified as
Acosta, lying dead and naked on his back beside the bed, his head
resting on a pillow.
Detective Michael Crowe of the Hudson County Prosecutor's
Office (HCPO) arrived at the scene later that evening. Crowe
observed bruising around Acosta's neck and petechial hemorrhaging
in his eyes. He also observed brown stains on the floor and a
noticeable odor of fecal matter throughout the apartment. In the
kitchen, the detective found garbage bags holding empty beer cans
and paper towels with brown stains; and in the living room, he
found Acosta's wallet. Crowe took photographs of the scene and a
3 A-4894-14T2
DNA sample from defendant. He noticed "some kind of marking" near
defendant's right wrist. Defendant gave two statements to
Detective Jose Diaz of the HCPO.
On October 3, 2010, Dr. Lyla Perez, who is employed at the
Division of Medical Examiners in Newark, conducted a post-mortem
examination of Acosta's body. The autopsy revealed bruises to the
right side of Acosta's neck and scattered above his collar bone,
other bruises to his back and face, petechial hemorrhages in his
eyes and near his vocal cords, and contusions on both sides of the
head. A toxicology report confirmed the presence of alcohol, Xanax,
cocaine, and cocaine metabolites in Acosta's system.
Dr. Perez testified that the injuries to Acosta's neck were
round and consistent with fingertips. She stated that Acosta's
neck injuries were deep and severe. These injuries reached all the
way to the larynx and would have required considerable compression.
Dr. Perez opined within a reasonable degree of medical certainty
that the cause of Acosta's death was asphyxia due to compression
of the neck and the manner of death was homicide.
On cross-examination, Dr. Perez acknowledged that Acosta was
obese and had an enlarged heart, an enlarged liver, and fluid in
his lungs and other organs, which was suggestive of congestive
heart failure. She explained that Acosta's condition itself could
have enhanced his potential for death. The condition also could
4 A-4894-14T2
have hastened his death due to the compression of the neck. She
nonetheless opined that the ultimate cause of Acosta's death was
compression of the neck. She reached the same conclusion
notwithstanding the potential effects of Acosta's alcohol and
cocaine use and his hypothetical breathing disorder. She
discounted each as the cause of death.
Dr. Perez acknowledged that Acosta's trachea had not been
substantially injured and his hyoid bone, which often fractures
with compression of the neck, had not been broken, but she
attributed the absence of such fractures to Acosta's young age and
the elasticity of his bones and cartilage. She also acknowledged
that some of the bruises could have been sustained in a fall to
the floor and some during sexual activity, and that forceful
vomiting could have caused petechial hemorrhaging in his eyes.
She stated, however, that not all of the bruises could have
resulted from a single fall and that vomiting would not have
explained the bruises on the neck. Finally, Dr. Perez acknowledged
that she had found no indication of a struggle, but noted that
that circumstance simply suggested that the compression of
Acosta's neck likely occurred either during sexual activity or
while he was unconscious.
Defendant testified on his own behalf. He stated that after
he and Acosta arrived at his apartment, they sat for a while on
5 A-4894-14T2
the couch in the living room drinking and kissing, and then retired
to the bedroom, where they engaged in sex for about an hour. Acosta
went to sleep and began to snore loudly. Defendant said he tried
to sleep despite the noise but noticed that Acosta had urinated
in the bed, so he pushed Acosta and told him to go to the bathroom.
After Acosta sat up at the edge of the bed, defendant pushed him
again. This time, Acosta wound up on the floor and resumed his
"extremely loud" snoring.
At around 6:00 a.m., defendant got up and left the apartment
to go the laundromat and check his account balance on a cash
machine. He returned to the apartment not long thereafter.
Defendant shut the bedroom door to stifle the sound of Acosta's
snoring. He laid down on the couch in the living room. Defendant's
upstairs neighbor and close friend M.U. arrived about an hour and
a half later.2
M.U. and defendant sat in the living room, talking and
drinking beer for what M.U. recalled was about four or five hours.
M.U. said she was unaware anyone else was in the apartment and she
never heard any noise coming from the bedroom. At around 1:45
p.m., M.U. paid a second visit to defendant's apartment to let
defendant know she would be babysitting her granddaughter, but she
2
We use initials for M.U. and other individuals involved in this
matter in order to protect their identities.
6 A-4894-14T2
soon left, believing defendant was not in the apartment.
Defendant testified, however, that he fell asleep after
M.U.'s first visit and did not wake up until around 3:30 or 4:00
p.m. Defendant had to get ready for work that evening and he
returned to the bedroom to wake Acosta up, but found Acosta had
defecated on the floor. Defendant cleaned Acosta with some paper
towels from the kitchen. He then attempted to wake Acosta up, but
there was no response.
Defendant initially thought Acosta was only "playing" but
became increasingly nervous as he continued trying to rouse him.
Defendant said he grabbed Acosta "with both of his hands" and
banged his head on the floor, hit him in the face, and put his
right hand on Acosta's neck and shook him. Defendant called A.T.,
a family friend, for help. Initially, A.T. advised defendant to
call 9-1-1 but ultimately agreed to make the call on defendant's
behalf because defendant has limited fluency in English.
On cross-examination, the prosecutor questioned defendant
about certain inconsistencies between his trial testimony and the
statements he gave to Detective Diaz of the HCPO. Defendant
admitted that he failed to tell the detective about some of his
more aggressive efforts to wake Acosta. Defendant also did not
tell the detective that he had gone to the laundromat early in the
morning or that M.U. had visited the apartment for several hours.
7 A-4894-14T2
Defendant stated that he did not mention these facts because
Detective Diaz did not ask for those details.
Defendant appeals and raises the following arguments:
POINT I
THE DEFENDANT WAS DENIED HIS SIXTH AMENDMENT
RIGHT TO A FAIR TRIAL AND HIS FOURTEENTH
AMENDMENT RIGHT TO DUE PROCESS BY THE TRIAL
COURT'S PRECLUDING THE ADMISSION OF CERTAIN
EVIDENCE.
POINT II
THE FAILURE OF THE STATE TO MAKE TIMELY
DISCLOSURE OF HEALTH INSURANCE INFORMATION
REGARDING THE VICTIM VIOLATED THE RULES OF
DISCOVERY AND DEFENDANT'S RIGHT TO A FAIR
TRIAL.
POINT III
THE LIMITATION OF THE CROSS-EXAMINATION OF
DETECTIVE CROWE DEPRIVED DEFENDANT OF [HIS]
RIGHT TO CONFRONT THE WITNESS AGAINST [HIM].
POINT IV
IT WAS ERROR FOR THE COURT TO DENY DEFENDANT'S
REQUEST FOR A CONTINUANCE TO OBTAIN MEDICAL
RECORDS OF THE VICTIM.
POINT V
THE COURT'S DENIAL OF DEFENDANT'S MOTION FOR
DISCOVERY OF RECORDS RELATING TO A PRIOR
PROSECUTION WHERE DEFENDANT WAS A VICTIM WAS
ERROR.
POINT VI
THE COURT'S CONDUCT TOWARD THE DEFENSE WAS
IMPERMISSIBLY PREJUDICIAL AND DEPRIVED
DEFENDANT OF A FAIR TRIAL.
POINT VII
IMPEACHMENT OF [M.U.] BY USE OF A PRIOR
CONVICTION WITHOUT THE UNDERLYING INFORMATION
8 A-4894-14T2
ABOUT THE CRIME WAS IMPROPER. (Not raised
below).
POINT VIII
THE DEFENDANT WAS DENIED A FAIR TRIAL WHEN THE
STATE ARGUED THAT [M.U.] HAD PERFORMED A
PRAYER OR RITUALISTIC BLESSING AT DEFENDANT'S
APARTMENT DOOR WITHOUT SUPPORTING TESTIMONY.
POINT IX
THE INSTRUCTIONS TO THE JURY ON RECKLESS
MANSLAUGHTER WERE INCOMPLETE AND ERRONEOUS AND
MANDATE REVERSAL OF DEFENDANT'S CONVICTION.
(Partially raised below).
POINT X
DENIAL OF THE DEFENDANT'S MOTION FOR A NEW
TRIAL WAS ERROR.
POINT XI
THE AGGREGATE ERRORS DENIED DEFENDANT A FAIR
TRIAL. (Not raised below).
II.
As noted, defendant argues that he was deprived of his right
to a fair trial and due process because the trial judge precluded
him from presenting opinion testimony from two witnesses, Dr.
Jonathan Penek and Dr. Robert Gross.
The record shows that in May 2013, defense counsel initially
notified the State that the defense planned to present expert
testimony from Drs. Penek and Gross. Defense counsel advised that
Dr. Penek was to testify as an expert in pulmonology "regarding a
medical disorder known as [s]leep [a]pnea and its relationship,
to a degree of reasonable medical certainty, to [Acosta's] death."
9 A-4894-14T2
Defense counsel indicated that Dr. Penek would rely on the
statement from Acosta's spouse about the breathing mask that Acosta
wore and evidence that Acosta snored and was intoxicated on the
night of his death. Defense counsel also advised that Dr. Gross
would testify as a traumatologist and orthopedic surgeon regarding
a prior injury to defendant's hand. Defense counsel indicated this
testimony would show that defendant did not have the strength to
inflict Acosta's injuries.
The State moved to bar Drs. Penek and Gross from testifying
because the defense had not provided expert reports from these
witnesses or summaries of their anticipated testimony. Following
argument and briefing by both parties, the trial judge concluded
that neither doctor should be permitted to testify as an expert.
The judge found that Dr. Penek could not be expected to
testify within a reasonable degree of medical certainty as to
whether Acosta's purported sleep apnea caused or contributed to
his death, since the doctor had neither examined Acosta nor
reviewed his medical records. The judge also noted that defendant
had not provided more than "sparse and ambiguous" personal and
professional information that would confirm Dr. Gross's
qualifications as an expert.
The judge stated that defendant had not provided the State
with an adequate proffer of the testimony of either witness at
10 A-4894-14T2
least thirty days prior to the previously scheduled trial date,
as required by Rule 3:13-3(b)(2)(E), despite the State's request
that he do so. Defendant's failure to comply with the rule
justified exclusion of the testimony.
Later, on the eve of trial, defense counsel indicated that
he intended to present Dr. Gross and Dr. Paresh Shukla as fact
witnesses. According to counsel, both doctors treated defendant
for his hand injury. Defense counsel argued that these witnesses
should be allowed to testify concerning their diagnoses and
treatment. The judge found, however, that Drs. Gross and Shukla
would essentially be offering expert testimony and reaffirmed his
earlier ruling barring such testimony.
On appeal, defendant does not argue that the judge erred by
precluding Drs. Gross and Penek from testifying as experts. He
argues, however, that the judge should have permitted the doctors
to testify as fact witnesses regarding their diagnoses and
treatment. Although defendant directs his arguments only to the
admissibility of testimony from Drs. Gross and Penek, he also
appears to be challenging the exclusion of Dr. Shukla's testimony.
N.J.R.E. 701 provides that a court may admit the testimony
of any lay witness in the form of opinion if that testimony "(a)
is rationally based on the perception of the witness and (b) will
assist in understanding the witness' testimony or in determining
11 A-4894-14T2
a fact in issue." Although a treating physician may possess the
necessary qualifications to testify as an expert, N.J.R.E. 701
allows the physician to offer medical testimony regarding his or
her diagnosis and treatment of a patient. Delvecchio v. Twp. of
Bridgewater,
224 N.J. 559, 576-78 (2016).
The permissible scope of such testimony is, however, limited.
Id. at 579. To the extent a particular matter in issue requires
medical testimony beyond testimony about diagnosis and treatment
of a patient, expert testimony may be required. Ibid. That is so
when the subject matter of the testimony is beyond the ken of the
average juror. State v. Kelly,
97 N.J. 178, 208-09 (1984). The
determination of whether expert testimony is required and
admissible is committed to the trial court's sound discretion.
State v. Berry,
140 N.J. 280, 293 (1995).
Here, the trial judge did not err by precluding defendant
from presenting expert testimony from Drs. Gross, Penek, and
Shukla. We note that although defendant's attorney did not indicate
that defendant intended to call Dr. Penek as a fact witness, the
doctor could not testify in that capacity because he never reviewed
Acosta's medical records or treated him. Drs. Gross and Shukla
could, however, testify as fact witnesses, but only to their
diagnoses and treatment of defendant years before. Nevertheless,
neither Dr. Gross nor Dr. Shukla could offer opinions as to the
12 A-4894-14T2
impact, if any, the condition of defendant's hand would have had
on his ability to cause Acosta's injuries, which was the reason
defense counsel intended to call these witnesses.
As the trial judge correctly determined, expert testimony was
required for any such opinions. Because defendant had not provided
the State with the discovery regarding expert witnesses required
by Rule 3:13-3(b)(2)(E), the judge did not mistakenly exercise his
discretion by finding that the doctors could not testify as
experts.
III.
Next, defendant argues he was denied his right to a fair
trial because the State failed to make timely disclosure of
Acosta's medical insurance card. Defendant contends that by doing
so, the State violated its duty under Brady v. Maryland,
373 U.S. 83 (1963), to provide him with all favorable evidence material to
his defense. Defendant further argues that the trial judge erred
by denying his request for a continuance so that his attorney
could obtain Acosta's medical records.
As we noted previously, defendant thought that Acosta may
have suffered from sleep apnea, and he wanted a defense expert to
review his medical records to determine whether that condition
caused or contributed to his death. The State advised the defense
that it did not have those records.
13 A-4894-14T2
In April 2012, defendant filed a motion to compel the State
to obtain Acosta's medical records, arguing that it would be
difficult for the defense to obtain those records, except by asking
Acosta's family for them. Defendant's counsel asserted that the
State would have a better chance than he would of obtaining the
records. The judge denied the motion, finding that the State had
no obligation to obtain the records. The judge noted that there
was nothing in the autopsy report or other evidence that might
compel the State to investigate an alternative cause of death.
In the months that followed, the defense hired an investigator
and sent two letters to Acosta's spouse requesting Acosta's medical
information but received no response. Defendant then renewed his
motion, citing these unsuccessful efforts. Defendant pointed to
evidence that purported to show that Acosta suffered from sleep
apnea, specifically a statement Acosta's spouse gave to the police
indicating that Acosta slept with a mask to address his snoring.
Defendant's attorney informed the court that the defense had
consulted with certain experts who agreed that they could not make
a determination as to whether Acosta had a condition that
contributed to his death without reviewing his medical records.
Defense counsel argued that Acosta's medical condition presented
a legitimate avenue for the defense and reiterated that defendant
was unlikely to obtain the evidence without some assistance by the
14 A-4894-14T2
State.
Counsel asked the court to order the State to ascertain the
identity of Acosta's treating physician, his employer, or his
insurance company. The judge denied the motion for the reasons
previously stated and issued an order memorializing that decision
on March 8, 2013. Defendant filed a timely motion for leave to
appeal with this court. The court denied the motion, but noted in
its order that defendant was not "precluded from subpoenaing the
desired medical records."
After several postponements, the trial was scheduled to begin
on April 21, 2014. The next day, defense counsel looked for the
first time in Acosta's wallet and found his medical insurance
card. Defense counsel claimed the State had failed to disclose
evidence material to the defense and moved for an adjournment to
permit the defense time to issue a subpoena to Acosta's insurance
company for his medical records. The following day, defense counsel
asked the judge to address the motion before the jury was sworn,
but the judge denied the request.
After the jury was sworn and charged, defense counsel again
sought an adjournment of the trial. Counsel asserted that the
defense had been seeking Acosta's medical information for years
and this information was crucial to establishing a legitimate
defense. Counsel also asserted the court's only rationale for
15 A-4894-14T2
having refused to require the State to produce Acosta's medical
information was that the State did not have the information, which
was not the case.
In response, the prosecutor asserted that the State had not
inventoried the contents of Acosta's wallet; however, the defense
knew about the wallet and never availed itself of the opportunity
to request an inventory or inspect it. The prosecutor also asserted
that even if Acosta had sleep apnea, as defendant claimed, this
would not have any bearing on the medical examiner's opinion as
to the cause of death, which was asphyxiation due to compression
of the neck.
The judge found no Brady violation, finding that Acosta's
insurance card was neither exculpatory nor likely to lead to
exculpatory evidence, and that the card had never actually been
"hidden" from the defense. In a supplemental written opinion, the
judge stated that defendant would suffer no undue prejudice from
the denial of an adjournment. The judge noted that defense had the
opportunity to inspect the wallet for several years, but failed
to do so until after the trial had already been twice delayed and
was about to begin.
The judge also wrote that a delay of the trial would not
"guarantee" the discovery of any additional information, and the
medical examiner could always "answer any questions on cross-
16 A-4894-14T2
examination as to sleep apnea being the possible cause of death."
Defendant filed an application with this court, seeking leave to
file an emergent motion for leave to appeal. The court denied the
application.
On appeal, defendant does not challenge the trial judge's
decisions denying his requests to compel the State to obtain
Acosta's medical information. Rather, defendant argues he was
denied a fair trial as a result of the claimed Brady violation and
the trial court's refusal to remedy that violation by adjourning
the trial.
We are convinced, however, that the judge correctly
determined that the State did not violate its obligation under
Brady by failing to provide the defense with Acosta's medical
insurance card. "In order to establish a Brady violation, the
defendant must show that: (1) the prosecution suppressed the
evidence; (2) the evidence is favorable to the defense; and (3)
the evidence is material." State v. Martini,
160 N.J. 248, 268
(1999).
Here, the State did not suppress evidence. Rather, the State
made its evidence, including the wallet, available for inspection
from the inception of the case, but defense counsel did not look
at the contents of Acosta's wallet until the day jury selection
began, at which point, defense counsel found Acosta's medical
17 A-4894-14T2
insurance card. As noted, the State represented it did not
inventory the contents of Acosta's wallet, and there is nothing
in the record indicating that the State knew about the insurance
card until defense counsel found it.
Moreover, defendant failed to show that he took all reasonable
steps to obtain Acosta's medical records. As noted, the defense
wrote to Acosta's spouse seeking the medical records and did not
get a response, but the defense did not take any further action
to obtain the information from Acosta's spouse or any other source.
In addition, defendant failed to establish that Acosta's
medical records were material to his defense. Evidence is material
if there is a "reasonable probability" that if disclosed, "the
result of the proceeding would have been different." Id. at 260
(quoting United States v. Bagley,
473 U.S. 667, 682 (1985).
As the State notes, sleep apnea would not explain Acosta's
extensive injuries, which included bruises on the neck, thyroid
cartilage, and clavicle. Furthermore, at trial, Dr. Perez
testified that Acosta's alleged sleep apnea could not and did not
cause his internal and external injuries. Thus, defendant has not
established that medical evidence could have been discovered,
which would have substantially undermined Dr. Perez's testimony.
We also reject defendant's contention that the judge erred
by denying his request for an adjournment of the trial. Such relief
18 A-4894-14T2
may be granted on a showing of good cause. State v. Hayes,
205 N.J. 522, 537-38 (2011). In determining whether to grant an
adjournment, the court should consider the relevant circumstances,
including:
the length of the requested delay; whether
other continuances have been requested and
granted; the balanced convenience or
inconvenience to the litigants, witnesses,
counsel, and the court; whether the requested
delay is for legitimate reasons, or whether
it is dilatory, purposeful, or contrived;
whether the defendant contributed to the
circumstance which gives rise to the request
for a continuance; . . . [and] whether denying
the continuance will result in identifiable
prejudice to defendant's case, and if so,
whether this prejudice is of a material or
substantial nature . . . .
[State v. Furguson,
198 N.J. Super. 395, 402
(App. Div. 1985) (quoting United States v.
Burton,
584 F.2d 485, 490-91 (D.C. Cir.
1978)).]
A trial court's decision on an adjournment request will not be
disturbed on appeal "unless it appears from the record that the
defendant suffered manifest wrong or injury." Hayes,
205 N.J. at
537 (quoting State v. Doro,
103 N.J.L. 88, 93 (E. & A. 1926)).
Here, the jury had been sworn and charged when the defense
sought the adjournment, and the court previously had adjourned the
trial twice. The requested continuance would have been of
indeterminate duration because defense counsel had to contact the
insurer, locate the medical providers, obtain the medical records,
19 A-4894-14T2
and have an expert review the records. The expert then would be
required to issue a report or summary of the facts and grounds for
his or her opinion. Moreover, there was no assurance any of
Acosta's medical information would support a legitimate defense
about the cause of death.
Therefore, defendant failed to establish the denial of his
request for an adjournment would result in identifiable prejudice.
We conclude the denial of defendant's adjournment request was not
a mistaken exercise of discretion.
IV.
Defendant further argues that the trial judge erred by denying
his motion to compel the State to produce records pertaining to
the prosecution in 2004 of an assault, during which defendant's
hand was injured. Defendant argues he was entitled to the records
under the Open Public Records Act (OPRA),
N.J.S.A. 47:1A- to -13,
and the common law.
OPRA states in pertinent part that
government records shall be readily accessible
for inspection, copying, or examination by the
citizens of this State, with certain
exceptions, for the protection of the public
interest, and any limitations on the right of
access accorded by [this act] as amended and
supplemented, shall be construed in favor of
the public’s right of access.
[N.J.S.A. 47:1(a)-1.]
20 A-4894-14T2
OPRA provides, however, that certain records shall not be subject
to public access, including "criminal investigatory records,"
which the Act defines as any "record[s] which [are] not required
by law to be made, maintained or kept on file that [are] held by
a law enforcement agency which pertains to any criminal
investigation or related civil enforcement proceeding."
N.J.S.A.
47:1A-1.1. The records defendant was seeking fall squarely within
that exemption.
Defendant argues that the trial court should have ordered the
State to provide access to the criminal investigatory file because
the records do not pertain to an ongoing investigation. In support
of that argument, defendant relies on
N.J.S.A. 47:1A-3, which
under appropriate circumstances exempts from OPRA's disclosure
requirements any materials pertaining to an "investigation in
progress by any public agency." We reject this argument because
OPRA provides a specific exemption for "criminal investigatory
records" and
N.J.S.A. 47:1A-3 pertains to other investigations by
public agencies. The records at issue here are records of a
criminal investigation.
Defendant also relies upon the decision in Asbury Park Press
v. Lakewood Township Police Department,
354 N.J. Super. 146 (Law
Div. 2002). In that case, the judge found that recordings of 9-1-
1 calls made to a police department were public records under the
21 A-4894-14T2
Right to Know Law, formerly
N.J.S.A. 47:1A-1 to -4 (repealed),
because they were required by law to be made, maintained, or kept
on file. Id. at 156-58 (citing N.J.A.C. 17:24-2.4(a)(1)). The
judge noted that the Governor had issued an Executive Order, which
excludes certain records from public disclosure, including records
of certain criminal investigations. Ibid. The judge held that 9-
1-1 recordings do not fall within the definition of criminal
investigatory records under the executive order. Id. at 157.
Defendant's reliance upon Asbury Park Press is, however,
misplaced. The Right to Know Law has been superseded by OPRA.
Mason v. City of Hoboken,
196 N.J. 51, 62 (2008). In any event,
as we have explained, the records defendant was seeking in this
matter are clearly "criminal investigatory records," which are
exempt from disclosure under OPRA.
In the trial court, defendant did not seek the records
pursuant to the common law. In any event, the court did not err
by failing to address the common law sua sponte. Moreover,
defendant was not entitled to disclosure of the records under the
common law. OPRA does not limit the common law right of access to
public records.
N.J.S.A. 47:1A-8. Under the common law, a public
record is defined as a "written memorial . . . made by a public
officer, and . . . the officer [must] be authorized by law to make
it." Nero v. Hyland,
76 N.J. 213, 222 (1978) (quoting Josefowicz
22 A-4894-14T2
v. Porter,
32 N.J. Super. 585, 591 (App. Div. 1954)).
Nevertheless, the right to access to public records is not
absolute. Drinker Biddle & Reath LLP v. N.J. Dep't of Law & Pub.
Safety,
421 N.J. Super. 489, 499 (App. Div. 2011) (quoting S. N.J.
Newspapers, Inc. v. Twp. of Mt. Laurel,
141 N.J. 56, 72 (1995)).
A party seeking access to the records must demonstrate an interest
in the subject matter of the documents, and the court should only
order disclosure if the party's right to access, when balanced
against the government's interest in preserving the
confidentiality of the material, weighs in favor of disclosure.
Mason,
196 N.J. at 67-68 (citing Keddie v. Rutgers,
148 N.J. 36,
50 (1997)).
Here, defendant failed to establish an interest in obtaining
the State's file pertaining to the 2004 assault prosecution.
Defendant asserted that in that assault, he suffered a severe
injury from hammer blows to his hand, which required several
surgeries and thereafter affected his ability to use his hand.
Defendant acknowledged, however, that he had already obtained the
medical records relating to his hand injury and provided those
records to the State and to his proposed expert.
On appeal, defendant argues that the State has no interest
in preserving the confidentiality of records from a criminal matter
dating back to 2004, but defendant has not made the required
23 A-4894-14T2
threshold showing that he has a legitimate interest in obtaining
the records. Defendant has not shown that the information he is
seeking was essential to his defense, when compared with
defendant's own description of the assault, the medical records
which he already has, or, more importantly, an expert's personal
examination of his hand.
V.
Defendant also argues that the trial judge erred by permitting
the assistant prosecutor to impeach M.U. by asking her about a
prior criminal conviction. Because defendant did not object to the
questions at trial, he must show that the judge erred by allowing
the prosecutor to ask the questions, and if so, whether the error
was "clearly capable of producing an unjust result." R. 2:10-2.
The record shows that during her direct examination, the
prosecutor asked M.U. whether she had previously been arrested.
M.U. replied that she had been arrested, but she had never been
"detained" or "jailed." M.U admitted that she pled guilty to
committing a crime; however, she could not recall when. The
prosecutor made no further comment on M.U.'s prior conviction
during her examination or summation. In his charge to the jury,
the judge instructed the jury it could only consider this evidence
in weighing the credibility of the witness's testimony.
The evidence rule in effect at the time of the trial stated
24 A-4894-14T2
that "[f]or the purpose of affecting the credibility of any
witness, the witness' conviction of a crime shall be admitted
unless excluded by the judge as remote or for other causes."
N.J.R.E. 609 (2013) (emphasis added).3 Thus, a court could exclude
such evidence only if it found that the conviction was sufficiently
remote, either in time or in the nature of the offense, or that
the risk of undue prejudice from its admission outweighed its
relevance to credibility. State v. Spivey,
179 N.J. 229, 243 (2004)
(quoting State v. Sands,
76 N.J. 127, 147 (1978)).
Defendant argues that the judge erred by allowing the State
to elicit testimony about the conviction because the judge did not
consider the nature of the offense, the date of the conviction,
or the sentence imposed. He contends the State never established
whether M.U. pled guilty to an indictable offense. Defendant claims
the State brought up the conviction only to show that he
"socialized with felons," thereby attempting to undermine his
credibility and that of other persons who testified on his behalf
as character witnesses.
In response, the State asserts that M.U. had been convicted
of an indictable offense, and records pertaining to the conviction
3
The rule was amended effective July 1, 2014, two months after
trial ended. Biunno, Weissbard & Zegas, Current N.J. Rules of
Evidence, note to N.J.R.E. 609 (2017).
25 A-4894-14T2
previously had been provided to defense counsel. In any event, the
State was not required to provide the court with a certified copy
of the judgment of conviction. N.J.R.E. 609 explicitly provides
that proof of the conviction could be made "by examination." In
this case, proof of the conviction was established in that manner.
Furthermore, defendant has not shown he suffered any undue
prejudice by the State's impeachment of its own witness with her
prior conviction. The record does not support defendant's claim
that the State elicited testimony about the conviction to suggest
that he consorted with felons. Moreover, as noted, the judge
instructed the jury that it could consider the conviction only for
the purpose of evaluating M.U.'s credibility.
We therefore conclude that the judge did not err by allowing
the prosecutor to question M.U. about her prior conviction, and
even assuming the judge erred by doing so, the error was not
"clearly capable of producing an unjust result." R. 2:10-2.
VI.
Defendant contends that the trial judge's rulings limiting
her counsel's cross-examination of Detective Crowe infringed his
rights to confrontation and a fair trial.
Criminal defendants are guaranteed both a state and federal
constitutional right to confront any witnesses against them at
trial. State v. Budis,
125 N.J. 519, 530 (1991) (citing U.S. Const.
26 A-4894-14T2
amend. VI; N.J. Const. art. I, ¶ 10). A defendant's right to cross-
examine witnesses against him should be free from any unreasonable
restrictions to ensure the defendant has a "meaningful opportunity
to present a complete defense." Id. at 531 (quoting Crane v.
Kentucky,
476 U.S. 683, 690 (1986)).
The trial courts nevertheless "retain wide latitude" in
imposing reasonable limits on examination to bar, among other
things, unnecessarily repetitive or marginally relevant testimony.
Id. at 531-32 (quoting Delaware v. Van Arsdall,
475 U.S. 673, 679
(1986)). The proper scope of cross-examination is committed to the
sound discretion of the trial judge. State v. Harvey,
151 N.J.
117, 188 (1997) (citing State v. Martini,
131 N.J. 176, 263
(1993)).
Here, the State presented testimony from Detective Crowe to
provide a description of the scene and to explain the photos he
took of the scene. Defendant's attorney cross-examined Crowe at
considerable length. Defendant argues that the judge erred by
limiting the cross-examination with regard to certain items
recovered from the crime scene, specifically hair extensions, a
pack of cigarettes, a cell phone, and Acosta's wallet.
The judge permitted defense counsel to ask Crowe some
questions about the hair extensions but after the State objected,
precluded counsel from asking further questions on this subject.
27 A-4894-14T2
The judge ruled that although the hair extensions had been
recovered from the crime scene, further testimony about these
items had no evidential value.
Defense counsel also asked Crowe about a package of cigarettes
recovered from the crime scene and the State objected. At a side
bar, defense counsel explained that these questions were intended
to elicit testimony that the cigarettes had been placed in the
package backwards. Counsel asserted that this fact might "have
some significance that this jury has a right to know about," but
counsel did not explain what that significance might be. The judge
sustained the State's objection.
Defendant's counsel also began to question Crowe about a cell
phone recovered from defendant's bedroom. Counsel asked Crowe if
a charging cord had been found with the phone. The State objected.
The judge asked counsel to explain the relevance of the charging
cord, and counsel replied that the defense believed it was Acosta's
phone. The judge noted that no evidence had been presented
establishing that the phone belonged to Acosta or some other
person. The judge ruled that the evidence was irrelevant and
sustained the State's objection.
In addition, the judge permitted defense counsel to question
Crowe about Acosta's wallet, but the State objected to questions
about the contents of the wallet. The judge sustained the
28 A-4894-14T2
objection, finding that testimony on that subject was irrelevant.
On appeal, defendant argues that all questions about the
items found at the crime scene were relevant because they supported
his claim that he and Acosta did not engage in any struggle. The
State never asserted, however, that defendant and Acosta struggled
on the night Acosta died.
Defendant asserts that the placement of the cigarettes
backwards in the pack suggests that Acosta was drunk or high on
drugs at some point during the evening, but the State never
disputed that was the case. Indeed, as noted previously, the State
introduced the toxicology report which established that alcohol,
Xanax, and cocaine were present in Acosta's system when he died.
Defendant also contends testimony about the contents of
Acosta's wallet was relevant because his insurance card "could
have confirmed his health issues." However, the mere possession
of an insurance card only could establish that Acosta had medical
insurance coverage, not that he suffered from any particular
condition. We note that on appeal, defendant advances no specific
arguments as to the relevance of the hair extensions or cell phone.
Therefore, we conclude the trial judge did not mistakenly
exercise his discretion by limiting defense counsel's cross-
examination of Crowe. Defendant's arguments on these issues lack
sufficient merit to warrant further comment. R. 2:11-3(e)(2).
29 A-4894-14T2
VII.
Next, defendant argues that he was denied his right to a fair
trial due to alleged prosecutorial misconduct. Defendant asserts
that during her summation, the assistant prosecutor improperly
commented that M.U. appeared to offer a prayer or blessing at
defendant's door when she left the apartment after her second
visit.
It is well established that a prosecutor is "afforded
considerable leeway" during summation, although "a prosecutor must
refrain from improper methods that result in wrongful conviction."
State v. Smith,
167 N.J. 158, 177 (2001) (citing State v. Frost,
158 N.J. 76, 82 (1999); State v. Harris,
141 N.J. 525, 559 (1995);
State v. Farrell,
61 N.J. 99, 105 (1972)). A prosecutor must
confine his or her comments to "evidence revealed during the trial
and reasonable inferences to be drawn from that evidence." Id. at
178 (citing Frost,
158 N.J. at 86; State v. Marks,
201 N.J. Super.
514, 534 (App. Div. 1985)). However, "'not every deviation from
the legal prescriptions governing prosecutorial conduct' requires
reversal." State v. Jackson,
211 N.J. 394, 408-09 (2012) (quoting
State v. Williams,
113 N.J. 393, 452 (1988)).
A reviewing court evaluates challenged remarks in the context
of the summation as a whole. State v. Atwater,
400 N.J. Super.
319, 335 (App. Div. 2008) (citing State v. Carter,
91 N.J. 86, 105
30 A-4894-14T2
(1982)). Reversal is warranted only if the remarks were "clearly
and unmistakably improper" and "substantially prejudiced the
defendant's fundamental right to have a jury fairly evaluate the
merits of his or her defense." State v. Ingram,
196 N.J. 23, 43
(2008) (quoting State v. Harris,
181 N.J. 391, 495 (2004)).
During M.U.'s testimony, the prosecutor showed M.U.
surveillance footage to refresh her recollection regarding her
visits to defendant's apartment. The footage was recorded in the
hallway outside defendant's apartment. According to the
descriptions in the record, the footage showed that after one of
her visits to the apartment, M.U. paused briefly and touched
defendant's door. The footage was admitted into evidence.
Over the objection of defense counsel, the prosecutor asked
M.U. about the footage. M.U. acknowledged that she appeared to be
touching the door. She stated that she might have been knocking,
but later said, "but if I'm leaving[,] why would I knock?" The
prosecutor asked, "Were you -- was that a prayer or something that
you were doing over the door?" Defense counsel objected to the
question, but before the judge ruled on the objection, M.U.
replied, "No."
In her summation, the prosecutor alluded to this exchange.
She asserted that M.U. had likely learned of Acosta's death during
her first visit to defendant's apartment and that her actions at
31 A-4894-14T2
the door after the second visit betrayed that knowledge. The
prosecutor stated "[w]e watched her leave the apartment at 1:45,
you watched the door close, and you watched her stand outside that
door and engage in some kind of prayer or ritualistic blessing."
Defense counsel objected on the ground that the comment was
contrary to M.U.'s testimony and therefore a matter of speculation,
but the judge overruled the objection, noting that as shown on the
video recording, M.U. had done "something." The judge observed
that the jury was not bound by the prosecutor's recollection and
could always "look at the tape again."
The prosecutor continued her summation and referred to M.U.'s
testimony. She stated:
But, again, I asked her what she was
doing to the door. She said -- ultimately,
she said, I -- I -- I don't know what I was
doing. She said maybe I was knocking on the
door.
And I said you were knocking on the door?
You were leaving the apartment. And she said,
yeah, that wouldn't make sense. And then she
denied that it was a -- a blessing, ladies and
gentlemen, or a prayer, or whatever it was.
But I submit to you that that shows you
that she knew exactly what was going [on]
inside of the defendant's apartment at that
time. She knew that [Acosta] was dead, she
did her prayer, and she left.
We reject defendant's assertion that the prosecutor's
comments about M.U.'s actions were not supported by the evidence.
32 A-4894-14T2
As noted, the surveillance footage was admitted into evidence, and
the judge commented that the footage showed M.U. doing "something"
with her hands when she left the apartment. Based on the evidence,
the prosecutor reasonably inferred that M.U.'s gesture was a
blessing or prayer, which indicated M.U. knew what had happened
in the apartment and that Acosta was dead.
VIII.
Defendant argues for the first time on appeal that the judge's
instructions to the jury on reckless manslaughter were incomplete
and misleading. He contends the errors require reversal of his
conviction.
Instructions should serve as a "road map to guide the jury"
in its deliberations, State v. Martin,
119 N.J. 2, 15 (1990), and
provide an accurate, "comprehensible explanation of the questions
that [it] must determine, including the law of the case applicable
to the facts that [it] may find," State v. Green,
86 N.J. 281,
287-88 (1981). In so doing, the instructions must address every
element of the offense. State v. Vick,
117 N.J. 288, 291 (1989).
However, not every inaccuracy in the jury charges warrants reversal
of a criminal conviction. State v. Jordan,
147 N.J. 409, 422
(1997).
In the absence of a timely objection to an instruction, a
reviewing court may reverse only for plain error. State v.
33 A-4894-14T2
Afanador,
151 N.J. 41, 54 (1997). Reversal is warranted only where
the error, considered in the context of the charge as a whole,
"prejudicially affect[s] the substantial rights of the defendant
sufficiently grievous[ly] to justify notice by the reviewing court
and to convince the court that of itself the error possessed a
clear capacity to bring about an unjust result." Jordan,
147 N.J.
at 422 (quoting State v. Hock,
54 N.J. 526, 538 (1969)).
Here, the judge instructed the jury regarding aggravated
manslaughter using the model jury charge. The judge explained in
part:
One element that the State must prove
beyond a reasonable doubt is the defendant
acted recklessly. A person who causes
another's death does so recklessly when he is
aware [of] and consciously disregards a
substantial and unjustifiable risk of death -
- risk that death will result from his
conduct. The risk must be of such a nature and
degree that, considering the nature and
purpose of defendant's conduct and the
circumstances known -- known by defendant, his
disregard of that risk is a -- a gross
deviation from the standard of conduct that a
reasonable person would follow in the same
situation.
In other words, you must find the
defendant was aware of and consciously
disregarded the risk of causing death. If you
find defendant was aware of and disregarded
the risk of causing death, you must determine
whether the risk that he disregarded was
substantial and unjustifiable.
In going -- in doing so, you must
34 A-4894-14T2
consider the nature and purpose of defendant's
conduct, and the circumstances known to
defendant, and you must determine whether, in
light of those facts, defendant's disregard
of that risk was a gross deviation from the
conduct a reasonable person would have
observed in defendant's situation.
After addressing the other elements of that offense, the
judge addressed the lesser-included offense of reckless
manslaughter, the offense for which defendant was convicted. The
judge explained:
A person is guilty of reckless
manslaughter if he recklessly caused the death
of another person.
In order for you to find the defendant
guilty of reckless manslaughter, the State is
required to prove each of the following
elements beyond a reasonable doubt:
1) defendant caused Edwin Acosta’s death;
and,
2) that the defendant did so recklessly.
One element that the State must prove
beyond a reasonable doubt is the defendant
acted recklessly.
I have already defined the term
recklessly for you.
The other element the State must prove
beyond a reasonable doubt is defendant caused
Edwin Acosta’s death.
You must find that Edwin Acosta would not
have died but for defendant's conduct.
If after consideration of all the
35 A-4894-14T2
evidence you are convinced beyond a reasonable
doubt that the defendant recklessly caused
Edwin Acosta’s death, then your verdict must
be guilty of reckless manslaughter.
If, however, after consideration of all
the evidence you are not convinced beyond a
reasonable doubt that the defendant recklessly
caused Edwin Acosta’s death, you must find the
defendant not guilty of reckless manslaughter.
[Emphasis added.]
Defendant's attorney did not object to these instructions and
defendant does not argue on appeal that they were legally
inaccurate. On appeal, defendant argues that the judge erred by
failing to repeat its full explanation of recklessness in the
context of the reckless manslaughter charge. We disagree.
Here, the judge gave the jury a thorough explanation of
recklessness in the context of the aggravated manslaughter charge
and explicitly incorporated that explanation by reference in the
reckless manslaughter charge. The instructions were legally
correct considered as a whole, and, given that the jury was
provided a copy of the relevant charges to aid in its
deliberations, the manner in which they were structured was not
clearly capable of producing an unjust result.
Defendant further argues that the judge erred by failing to
offer a more comprehensive explanation of the element of causation
in light of the defense's theory that decedent's health condition
36 A-4894-14T2
could have contributed to his death. Again, we disagree.
As to the element of causation, the Criminal Code provides:
a. Conduct is the cause of a result when:
(1) It is an antecedent but for which
the result in question would not have
occurred; and
(2) The relationship between the conduct
and result satisfies any additional causal
requirements imposed by the code or by the law
defining the offense.
. . . .
c. When the offense requires that the
defendant recklessly or criminally
negligently cause a particular result, the
actual result must be within the risk of which
the actor is aware . . . or, if not, the actual
result must involve the same kind of injury
or harm as the probable result and must not
be too remote, accidental in its occurrence,
or dependent on another’s volitional act to
have a just bearing on the actor’s liability
or on the gravity of his offense.
[N.J.S.A. 2C:2-3.]
The Code therefore requires a determination that the conduct
constituting the offense was a "but-for" cause of the result, and
if applicable, a determination that the defendant was sufficiently
culpable for that result. State v. Pelham,
176 N.J. 448, 460 (2003)
(citing Martin,
119 N.J. at 11–13). Accordingly, a jury must
consider
whether intervening causes or unforeseen
conditions lead to the conclusion that it is
37 A-4894-14T2
unjust to find that the defendant's conduct
is the cause of the actual result. Although
the jury may find that the defendant's conduct
was a "but-for" cause of the victim's death
. . . it may nevertheless conclude . . . that
the death differed in kind from that designed
or contemplated [or risked] or that the death
was too remote, accidental in its occurrence,
or dependent on another's volitional act to
justify a . . . conviction.
[Id. at 460-61 (quoting Martin,
119 N.J. at
13).]
At trial, the defense argued that Acosta's health condition
might have contributed to his death and defense counsel questioned
the medical examiner on the issue. However, the medical examiner
remained steadfast in her conclusion as to Acosta's cause of death,
which was asphyxia due to compression of the neck, and there was
no expert testimony to the contrary. As quoted above, the judge
specifically instructed the jury it could convict defendant of
reckless manslaughter only if "defendant caused Edwin Acosta's
death." The jury was told it must find Acosta "would not have died
but for defendant's conduct." Based on the evidence presented at
trial, an expanded charge on causation was not warranted, and its
absence was not "clearly capable of producing an unjust result."
R. 2:10-2.
IX.
Defendant contends the judge's conduct toward the defense was
impermissibly prejudicial and deprived him of a fair trial.
38 A-4894-14T2
A trial judge possesses wide discretion in his or her
administration of a criminal trial, State v. Tilghman,
385 N.J.
Super. 45, 53-54 (App. Div.) (quoting Sullivan v. State,
46 N.J.L.
446, 447 (Sup. Ct. 1884)), remanded in part on other grounds,
188 N.J. 269 (2006). However, the judge must exercise that authority
with great care. State v. Guido,
40 N.J. 191, 207-08 (1963) (citing
Ridgewood v. Sreel Inv. Corp.,
28 N.J. 121, 132 (1958)). To ensure
a fair trial, the judge must always maintain an atmosphere of
impartiality and be "careful not to throw [its] judicial weight"
on either side of the dispute or otherwise stray into the realm
of advocacy. State v. Ray,
43 N.J. 19, 25 (1964) (first quoting
Ridgewood,
28 N.J. at 132; and then citing People v. Mahoney,
258 P. 607 (Cal. 1927)).
On appeal, defendant argues that the trial judge improperly
informed potential jurors that Acosta had died from
"strangulation." He claims the judge improperly limited
defendant's cross-examination of Detective Crowe and restricted
defense counsel's questioning of other detectives involved in the
investigation. Defendant argues that the judge improperly
instructed defense counsel he would not allow her to recall any
of the State's witnesses without a valid proffer.
In addition, defendant contends the judge indicated to the
jury that he did not think highly of defense counsel or her
39 A-4894-14T2
competence. He contends the judge limited summations to one hour
and interrupted defense counsel when she spoke ten minutes longer
than permitted.
Defendant argues that because the State's case turned on
circumstantial evidence, the judge's alleged partiality could have
tipped the scales in favor of a guilty verdict and against an
outright acquittal, thereby depriving him of a fair trial. We are
convinced these arguments lack sufficient merit to warrant
discussion in a written opinion. R. 2:11-3(e)(2).
We add, however, that the judge's statement that the medical
examiner would testify that the victim died "by strangulation" did
not prejudice defendant, and the judge's limits on the questions
of defense counsel were a proper exercise of the judge's
discretion. Also, the judge did not err by requiring defense
counsel to justify recalling any of the State's witnesses, and the
judge did not mistakenly exercise his discretion by limiting
summations to one hour and reminding defense counsel of that
limitation.
We agree that the judge should not have said that defense
counsel was acting unprofessionally. However, the judge's remarks
followed defense counsel's failure to comply with the judge's
rulings and instructions. In any event, we are not convinced that
the comments suggested to the jury that the judge was biased in
40 A-4894-14T2
favor of the State. The comments merely reflected the judge's lack
of patience with defense counsel.
Moreover, in his final instructions, the judge commended both
counsel on the professional manner in which they had handled the
case and noted that any evidentiary ruling he made "was not an
expression or an opinion by [the judge] on the merits of the case."
The judge added that the jury should not view any other rulings
he made as "favoring one side or the other."
We therefore reject defendant's contention that the
aforementioned rulings or remarks deprived him of a fair trial.
X.
Defendant argues that the trial judge erred by denying his
motion for a judgment of acquittal notwithstanding the verdict.
Such relief is available under Rule 3:18-2; however, relief
is not warranted if, "viewing the evidence in its entirety, be it
direct or circumstantial, and giving the State the benefit of all
of its favorable testimony as well as all favorable inferences
therefrom, the evidence is sufficient to enable a jury to find"
the defendant guilty "beyond a reasonable doubt." State v. Ball,
268 N.J. Super. 72, 133 (App. Div. 1993) (citing State v. Reyes,
50 N.J. 454, 459 (1967)).
A court's determination of whether to grant a judgment of
acquittal is ordinarily confined to the State's evidence. State
41 A-4894-14T2
v. Sugar,
240 N.J. Super. 148, 152-53 (App. Div. 1990). However,
where, as in this case, a defendant is convicted of a lesser-
included offense, the court should determine whether his or her
conviction is sustainable based on the entire record, including
the evidence adduced in the course of his or her defense. Id. at
153. That standard applies on appeal. Ibid.
Here, the trial court found that the evidence presented a
sufficient basis for defendant's conviction of reckless
manslaughter. The court noted that the medical examiner had
testified that Acosta's death was a homicide, the cause of death
was asphyxiation due to compression of the neck, the injuries to
Acosta's neck were deep and severe given their location, and the
injuries were round and consistent with fingertips. Furthermore,
on cross-examination, the medical examiner discounted other
possible causes of death, such as Acosta's purported breathing
disorder or his use of alcohol and cocaine.
The court noted that the evidence presented at trial,
including defendant's own testimony, established that defendant
had a relationship with Acosta, and defendant had sex with him on
the night he died. The record allowed the jury to conclude that
defendant had done something to Acosta, including putting his
hands around Acosta's neck, whether during sex, in anger, or in
an attempt to wake him.
42 A-4894-14T2
The court acknowledged that it was impossible to know
precisely what occurred that night in defendant's apartment. The
court found, however, that a jury could nonetheless infer from the
circumstances that "something happened" to cause Acosta's death,
and that "it was reckless" on defendant's part.
On appeal, defendant argues that a judgment of acquittal was
warranted essentially on the basis of the other arguments raised
on appeal, including the State's failure to produce Acosta's
insurance card, the judge's disputed evidentiary rulings, the
judge's restrictions on the time for summations, and the charge
to the jury on reckless manslaughter. However, none of those
contentions meet the standard for relief. Reyes,
50 N.J. at 458-
59.
Therefore, we conclude the court did not err in denying
defendant's motion for a judgment of acquittal notwithstanding the
verdict. Defendant's arguments to the contrary lack sufficient
merit to warrant further discussion. R. 2:11-3(e)(2).
XI.
Defendant also argues that even if we conclude that the
individual errors complained of did not deny him a fair trial, the
cumulative effect of those errors warrant reversal of his
conviction and a remand for a new trial. Again, we disagree.
The court may reverse a conviction when the cumulative effect
43 A-4894-14T2
of a series of errors is harmful, even if each error is harmless
in itself. State v. Jenewicz,
193 N.J. 440, 474 (2008). None of
the errors complained of warrant reversal, even when considered
cumulatively.
Affirmed.
44 A-4894-14T2
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