STATE OF NEW JERSEY v. WANDA ANTHONY
Annotate this CaseNOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-5002-17
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
WANDA ANTHONY,
Defendant-Appellant.
_______________________
Submitted November 2, 2020 – Decided March 5, 2021
Before Judges Fasciale and Susswein.
On appeal from the Superior Court of New Jersey, Law
Division, Somerset County, Indictment No. 14-06-
0412.
Joseph E. Krakora, Public Defender, attorney for
appellant (Monique Moyse, Designated Counsel, on the
brief).
Michael H. Robertson, Somerset County Prosecutor,
attorney for respondent (Paul H. Heinzel, Assistant
Prosecutor, of counsel and on the brief).
PER CURIAM
Defendant, Wanda Anthony, appeals from her jury trial convictions and
resultant prison sentences for possession of a firearm for an unlawful purpose
and for criminal mischief. After carefully reviewing the record in view of the
applicable legal principles and arguments of the parties, we affirm the
convictions. We also affirm the sentence imposed on the firearms possession
crime. We remand, however, for resentencing on the criminal mischief
conviction, which was treated as a fourth-degree crime even though defendant
actually was convicted of a disorderly persons offense.
This case arises from an unfortunate altercation that occurred in April
2014 during a first date. The evidence adduced at trial shows that defendant and
her date, Stuart Cundiff, returned to Cundiff's home after a night visiting bars.
There, Cundiff's longtime girlfriend, Tytana Jones, confronted and physically
assaulted defendant. Defendant, who was then a New York City police officer,
was carrying a handgun in her purse. Angry and apparently believing that
Cundiff was responsible for the physical altercation, defendant fired her weapon
into Cundiff's empty car, damaging a window.
Defendant was indicted for second-degree possession of a firearm for an
unlawful purpose, N.J.S.A. 2C:39-4(a); third-degree hindering apprehension/
investigation, N.J.S.A. 2C:29-3(b); and fourth-degree criminal mischief,
A-5002-17
2 N.J.S.A. 2C:17-3(a)(1). She was tried before a jury over the course of eleven
non-consecutive days in September and October 2017. The jury acquitted
defendant of hindering but convicted her of possession of a firearm for an
unlawful purpose. The jury also convicted defendant of criminal mischief,
which was downgraded by the trial judge to a disorderly persons offense at the
close of the State's case. 1
Defendant appeared before a different judge for sentencing in May 2018.
In accordance with the mandatory minimum sentencing provisions of the Graves
Act, N.J.S.A. 2C:43-6(c), defendant was sentenced on the firearms conviction
to a five-year prison term with a forty-two-month period of parole ineligibility.
The sentencing judge also imposed a concurrent six-month term of
imprisonment on the criminal mischief conviction.
Defendant raises the following contentions for our consideration:
POINT I
THE COURT'S RULING BARRING CROSS-
EXAMINATION OF A WITNESS ABOUT HIS OUT-
1
Prior to closing arguments, defense counsel moved for a judgment of acquittal
on the criminal mischief count. The trial judge ruled that the State had not
produced evidence to prove that the damage to Cundiff's vehicle exceeded $500.
The judge thereupon downgraded the criminal mischief charge from a fourth-
degree crime to a disorderly persons offense and instructed the jury accordingly.
A-5002-17
3
OF-COURT STATEMENTS, WHICH WERE
ADMITTED AS SUBSTANTIVE EVIDENCE,
VIOLATED [DEFENDANT'S] RIGHT TO
CONFRONTATION.
POINT II
THE TRIAL COURT'S FAILURE TO GIVE
INSTRUCTIONS ON THIRD-PARTY GUILT AND
"FALSE IN ONE, FALSE IN ALL," DEPRIVED
[DEFENDANT] OF A FAIR TRIAL. (NOT RAISED
BELOW).
A. FAILURE TO CHARGE THIRD-PARTY
GUILT WAS PLAIN ERROR.
B. FAILURE TO CHARGE "FALSE IN ONE –
FALSE IN ALL" WAS PLAIN ERROR.
POINT III
PROSECUTORIAL MISCONDUCT AND
OVERREACHING DEPRIVED [DEFENDANT] OF
HER RIGHT TO A FAIR TRIAL.
POINT IV
THE TRIAL COURT AND STATE DEPRIVED
[DEFENDANT] OF HER RIGHT TO A FAIR TRIAL
BY INTRODUCING A PRIOR INCONSISTENT
STATEMENT OF A STATE WITNESS THAT DID
NOT SATISFY THE REQUIREMENTS OF N.J.R.E.
803(A)(1).
POINT V
THIS MATTER MUST BE REMANDED FOR
RESENTENCING ON COUNT THREE, WHICH WAS
DOWNGRADED TO A DISORDERLY PERSONS
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4
OFFENSE, BUT WHICH WAS SENTENCED AS A
FOURTH-DEGREE OFFENSE.
POINT VI
THE TRIAL COURT ABUSED ITS DISCRETION BY
FAILING TO IMPOSE A DOWNGRADED
SENTENCE ON COUNT ONE.
I.
We recount the circumstances of the offense and the ensuing investigation
in substantial detail to provide a factual context for the legal issues in this
appeal. Defendant and Cundiff's first romantic encounter began in the late
afternoon of April 29, 2014 at a restaurant in Elizabeth. When Cundiff asked
defendant about her occupation, she disclosed she was a New York police
sergeant and displayed the firearm in her purse. Later, the pair proceeded to
Cundiff's house to drop off defendant's car so they could travel together to a bar
in Newark. They picked up Cundiff's friend and cousin along the way. The
group of four later moved on to a bar in Plainfield.
Jones, Cundiff's on-and-off girlfriend, called Cundiff while he and
defendant were at his house dropping off defendant's car. After that call, Jones
drove to the bar in Plainfield to confront Cundiff and defendant. Cundiff's friend
and cousin interceded and persuaded Jones to leave before she could exchange
words with defendant.
A-5002-17
5
Jones called Cundiff again as the group was leaving the bar in Plainfield.
Cundiff passed his cell phone to defendant. According to a statement Cundiff
gave to police later that night, defendant said to Jones, "I'm fucking your man
tonight."
The group travelled to a bar in New Brunswick. They departed shortly
before 2:00 a.m. to drop off Cundiff's cousin and friend. Cundiff, his cou sin,
and his friend smoked marijuana before parting company.
Cundiff drove defendant to his home around 3:00 a.m. and Jones closely
followed. Before defendant could exit Cundiff's vehicle, Jones opened the
passenger-side car door and punched defendant in the face. The two women
scuffled. Jones struck defendant in the head multiple times, pulled her hair, and
dragged her across the lawn. Cundiff was eventually able to pull Jones away
from defendant.
Cundiff took defendant inside to the bathroom to clean up. Cundiff
observed that defendant appeared disoriented and he suspected she might have
suffered a concussion. He asked her to stay at his house. Defendant declined
when Jones indicated that she also would be staying at the house.
Before leaving, tempers flared again, and defendant attempted to strike
Jones with a Lysol can but missed. The two women resumed fighting until
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6
Cundiff separated them a second time. Cundiff observed that defendant now
had a black eye, a cut and swollen lip, a scraped elbow, and disheveled clothes.
Jones, in contrast, had no visible injuries.
Cundiff escorted defendant to her vehicle and checked to make certain she
was fit to drive. Before finally leaving, defendant threatened to retaliate against
Cundiff. When Cundiff returned to the house, Jones warned him that defendant
appeared to have a gun in her hand. Cundiff did not see defendant holding a
weapon, but replied, "[s]he would. She's a fucking cop." Cundiff and Jones
then heard gunfire. They retreated to the basement and Cundiff called 9-1-1.
He ventured outside to relay defendant's license plate number to the 9-1-1
dispatcher.
Officer Brian McLaughlin responded to the dispatch and stopped
defendant's vehicle. When asked whether she was carrying a firearm, defendant
stated that she had a handgun in her purse. She exclaimed, "I never fired my
weapon, Officer. I swear to God I didn't[,]" although Officer McLaughlin had
not asked whether the weapon had been discharged. Officer McLaughlin
observed that defendant smelled of alcohol. Defendant told the officer, "I had
like two drinks, that's it."
A-5002-17
7
Defendant repeatedly invoked her status as a police sergeant, imploring
the officer to remove her handcuffs. "Please, I'm a sergeant," she explained.
"I'm your boss. I would do it for you. I'm your boss. If anything happen[sic],
I got your back." She further remarked, "I would never bring you in like this
and I would give you like a bunch of water to drink so when they give you a
breathalyzer your test would like be—it wouldn't be that much. I would keep
giving you water to drink and I wouldn't leave you in cuffs, sir." When Officer
McLaughlin asked if defendant needed medical treatment, she replied, "[n]o, I
don't want medical attention. I have a black eye and a busted lip. I just wanted
to go home and I swear to God, I would never cuff you in the back of a car like
a perp . . . ."
Officer McLaughlin transported defendant to the local police
headquarters. Once there, she declined an EMT's offer to take her to the hospital
to check for a concussion. Defendant provided her personal contact information
to the EMT, but later refused to provide the information to Officer McLaughlin,
claiming that her head hurt and that she was not clear with her inform ation
"because of the unconsciousness." Officer McLaughlin testified that throughout
the roadside encounter and at the police station, defendant maintained eye
A-5002-17
8
contact with him, which was inconsistent with his experience with others who
had suffered significant head injuries.
Defendant later was questioned by Lieutenant William Kelly. She
adamantly denied discharging her weapon when she was told that a spent shell
casing had been found on the ground near Cundiff's car.
Defendant's vehicle was searched pursuant to a warrant. There, police
recovered her handgun, which was in a purse that also contained defendant's
driver's license and New York Police Department identification. The weapon
was found to have a round in the chamber. The high-capacity magazine was
fully loaded, save for one missing bullet. The State's forensics expert opined
that the bullet recovered from inside Cundiff's vehicle had been fired from
defendant's handgun.
Approximately two hours after Cundiff made the 9-1-1 call, Detective
Sherif Zaiton went to Cundiff's home to take his statement. Detective Zaiton sat
with Cundiff in his basement and informed him that the statement would be
electronically recorded. The Detective neglected, however, to place Cundiff
under oath. Detective Zaiton later characterized that as an "oversight."
Later that afternoon, Lieutenant Kelly also took an electronically recorded
statement from Cundiff. This time, Cundiff was placed under oath. Cundiff
A-5002-17
9
repeated information that he had given to Detective Zaiton earlier that day and
added further details to his account of events. Specifically, Cundiff told
Lieutenant Kelly the following: defendant showed him her handgun in her
purse; defendant took his phone from him in the car and told Jones, "I'm fucking
your man"; defendant swung at Jones with a Lysol can in the garage but missed;
defendant was "a little bit" intoxicated at the time; defendant took several wine
bottles from his home as she left; defendant made threats such as "I'm going to
have some guys beat you up"; he heard Jones state that defendant had a gun,
although Cundiff did not see defendant brandish a weapon; he heard gunfire
while hiding in the basement garage; he saw the bullet hole in his car; and he
did not believe defendant's intention was to shoot anyone.
Cundiff texted defendant several times over the next few days, stating,
"[t]hat wasn't necessary. Why would you fuck your career up?" and "[j]ust
worried about you. I do care about you. I told police you weren't trying to shoot
anyone, that you didn't have intentions of shooting anyone. If you need me to
do anything, just let me know."
At trial, Cundiff claimed that he did not recall much of the information
that he provided to Detective Zaiton and Lieutenant Kelly. When presented with
transcripts of his recorded statements to refresh his recollection, Cundiff
A-5002-17
10
claimed his memory was hazy because he had been drinking and smoking
marijuana that night.
II.
We first address defendant's contention the trial court erred in admitting
Cundiff's unsworn recorded statement to Detective Zaiton as a prior inconsistent
statement under N.J.R.E. 803(a)(1). 2 The judge found that Cundiff's claim
during his direct examination that he could not remember what he had told
Detective Zaiton was not credible and that his trial testimony was inconsistent
with the prior statements he gave to police shortly after the shooting episode.
The audio recordings of both statements were played to the jury.
Defendant contends that Cundiff's out-of-court statement to Detective
Zaiton lacks the level of reliability required for admission as substantive
evidence under State v. Gross, 121 N.J. 1 (1990). Defendant maintains that
statement was unreliable because Cundiff testified at trial that he was drunk and
high at the time he was interviewed by Detective Zaiton, and also because
Cundiff had reason to lie to the detective to protect himself and Jones, his long -
time girlfriend. We reject defendant's arguments and affirm the admissibility of
2
During an in-chambers conference following the judge's ruling on the
admissibility of the statement Cundiff gave to Detective Zaiton, defense counsel
stipulated to the admission of Cundiff's recorded statement to Lieutenant Kelly.
A-5002-17
11
Cundiff's recorded statement to Detective Zaiton substantially for the reasons
set forth in the trial court's detailed and comprehensive findings. We add the
following remarks.
Under N.J.R.E. 803(a)(1), a declarant's out-of-court statements may be
admissible as substantive evidence, and not just used for impeachment purposes,
where the statements are "inconsistent with the declarant-witness's testimony at
the trial or hearing and [are] offered in compliance with N.J.R.E. 613." N.J.R.E.
613, in turn, requires that such statements be excluded unless the declarant -
witness has an opportunity to explain or deny the statement and the opposing
party is given the opportunity to cross-examine the witness on the out-of-court
statement.
When a party seeks to admit a prior inconsistent statement for substantive
purposes, the trial court must determine whether the circumstances indicate that
the out-of-court statement is reliable. The proponent seeking admission bears
the burden of proving the reliability of the prior inconsistent statement by a fair
preponderance of the evidence. Gross, 121 N.J. 16–17. Our Supreme Court in
Gross identified fifteen factors for trial courts to consider when determining the
reliability of an out-of-court statement:
(1) the declarant's connection to and interest in the
matter reported in the out-of-court statement;
A-5002-17
12
(2) the person or persons to whom the statement was
given;
(3) the place and occasion for giving the statement;
(4) whether the declarant was then in custody or
otherwise the target of investigation;
(5) the physical and mental condition of the declarant
at the time;
(6) the presence or absence of other persons;
(7) whether the declarant incriminated himself or
sought to exculpate himself by his statement;
(8) the extent to which the writing is in the
declarant's hand;
(9) the presence or absence, and the nature of, any
interrogation;
(10) whether the offered sound recording or writing
contains the entirety, or only a portion of the
summary, of the communication;
(11) the presence or absence of any motive to
fabricate;
(12) the presence or absence of any express or implicit
pressures, inducement[,] or coercion for making
the statement;
(13) whether the anticipated use of the statement was
apparent or made known to the declarant;
(14) the inherent believability or lack of believability
of the statement; and
(15) the presence or absence of corroborating
evidence.
[Id. at 10].
The trial judge first determined that Cundiff's recorded statement to
Detective Zaiton had been offered in compliance with N.J.R.E. 613, as Cundiff
was afforded the opportunity at trial to explain or deny his prior inconsistent
A-5002-17
13
statements. The trial judge also ruled that defense counsel had an opportunity
to cross-examine Cundiff regarding his recorded statements to police. 3
The trial judge systematically addressed the Gross factors, making
exhaustive and detailed findings. Specifically, the judge found:
(1) Cundiff, as the alleged victim of a shooting that damaged the motor
vehicle primarily operated by him and owned by his parents, had a
significant connection and interest to the matter reported in the out-
of-court statement;
(2) The statement was given to Detective Zaiton in the course of fulfilling
his duty as a law enforcement officer sent to investigate a reported
crime;
(3) The statement was given at Cundiff's place of residence, and Cundiff
was neither taken into custody nor subjected in any way to any
pressure to provide the statement, whether tacit or direct;
(4) Cundiff was not the target of an investigation, nor was he subjected to
pressure to provide the statement;
3
In section III, we address defendant's contention that the trial judge unduly
restricted the scope of counsel's cross-examination of Cundiff in violation of
defendant's confrontation clause rights.
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14
(5) Although there were competing proofs and arguments submitted
regarding Cundiff's condition at the time, the court determined from
reviewing the electronic recording that Cundiff appeared to speak
clearly, was oriented as to his surroundings, responded cogently to
Detective Zaiton's questions, and displayed the same calm demeanor
during questioning as he did during his in-court testimony;
(6) The interview was one-on-one, and no one else was present during his
statement;
(7) Cundiff neither incriminated himself nor sought to exculpate himself
during his statement;
(8) Cundiff's statements were not written, but were electronically
recorded4;
(9) There was no interrogation;
(10) Detective Zaiton attested that the audio recording was the entirety
of the statement, without omissions or deletions, with which the court
agreed;
4
We note that under N.J.R.E. 801(e), sound recordings are included within the
definition of a writing.
A-5002-17
15
(11) There was no motive for Cundiff to fabricate his story to Detective
Zaiton, as he was not the subject of a criminal investigation and had
no motive to protect someone else;
(12) Detective Zaiton testified that there were no promises, inducements,
or pressures placed upon Cundiff; rather, the statements were made as
a result of the police response to Cundiff's own 9-1-1 call;
(13) It was reasonable for Cundiff to assume that the statement might be
used by police in their investigation of the reported crime,
notwithstanding the lack of such notification to Cundiff;
(14) The statement made to Detective Zaiton was inherently believable;
and
(15) There was substantial evidence corroborating Cundiff's statements
to Detective Zaiton.
The judge found Detective Zaiton's testimony credible. Moreover, the
judge carefully considered and rejected defendant's argument that Cundiff was
too drunk and high to have given a reliable statement. The judge liste ned to the
sound recording of Cundiff's statement to Detective Zaiton and determined that
Cundiff appeared cogent.
A-5002-17
16
The trial judge also considered and rejected defendant's argument that
Cundiff had a motive to fabricate his account to police to protect himself and
his longtime girlfriend. The judge noted that Cundiff was not the subject of a
criminal investigation.
As a general matter, "[t]he decision to admit or exclude evidence is one
firmly entrusted to the trial court's discretion." State v. Scott, 229 N.J. 469, 479
(2017) (quoting Estate of Hanges v. Metro Prop. & Cas. Ins. Co., 202 N.J. 369,
383–84 (2010)). We thus apply "a deferential standard in reviewing a trial
court's evidentiary rulings and uphold its determinations 'absent a showing of an
abuse of discretion.'" Ibid. (quoting State v. Perry, 225 N.J. 222, 233 (2016)).
Indeed, "[a] reviewing court must not 'substitute its own judgment for that of the
trial court' unless there was a 'clear error in judgment'—a ruling 'so wide of the
mark that a manifest denial of justice resulted.'" Ibid. (quoting Perry, 225 N.J.
at 233).
Applying this deferential standard of review to the record before us, we
conclude the trial court did not abuse its discretion in making its detailed factual
findings, which were amply supported by the record, or in ruling that the out-
of-court statement Cundiff gave to Detective Zaiton was reliable and admissible
as substantive evidence under N.J.R.E. 803(a)(1).
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17
III.
We next address defendant's contention that her Sixth Amendment right
of confrontation was violated when the trial judge enforced limits on the scope
of defense counsel's cross-examination of Cundiff. Given the importance of the
constitutional right to confront witnesses and the complex sequence of events
that unfolded at trial, we deem it appropriate to recount the relevant
circumstances in detail.
As we have already noted, Cundiff's trial testimony was at odds with the
two recorded statements he gave to police shortly after the shooting incident.
When the State realized during its direct examination that Cundiff was
disavowing his previous recorded statements, the prosecutor advised the court
and defense counsel that the State would move to admit Cundiff's two out -of-
court statements as substantive evidence. That motion precipitated the need for
an N.J.R.E. 104 hearing, commonly referred to as a Gross hearing, outside the
presence of the jury.
In response to the State's motion, defense counsel told the judge, "If you're
. . . asking me what my preference is? I'd prefer to cross-examine him [in front
of the jury] before we do that [referring to the Gross hearing]." The trial judge
acceded to defense counsel's preference and permitted counsel to cross-examine
A-5002-17
18
Cundiff in front of the jury before convening the Gross hearing to decide
whether to admit the recorded statements as substantive evidence.
The judge carefully explained how the impending cross-examination and
any re-direct and re-cross examinations of the witness would proceed in front of
the jury. Specifically, the trial judge alerted defense counsel that it would
enforce the general rule in N.J.R.E. 611(b), which limits cross-examination to
the subject matter of the direct examination and matters affecting the witness's
credibility. The judge thereupon cautioned defense counsel to use the
impending cross-examination to address all germane issues within the scope of
the State's direct examination. The judge expressly warned defense counsel that
if the prosecutor did not revisit Cundiff's out-of-court statements during re-
direct examination, counsel would be barred from revisiting those statements
during re-cross examination.
Defense counsel expressly acknowledged the judge's warning. Our
review of the record also indicates that defense counsel was exhaustive in his
cross-examination of Cundiff at trial; indeed, the cross-examination spans
approximately fifty-three pages of trial transcript. Counsel painstakingly
explored the circumstances surrounding the two recorded statements Cundiff
gave to the police, the substantive content of those statements, and the content
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19
of the 9-1-1 call that Cundiff had made. The record also shows that Cundiff was
cooperative with defense counsel during cross-examination. In his trial
testimony, both on direct and cross, Cundiff repeatedly maintained that he could
not recall what had transpired, other than that defendant had consumed very
little alcohol that night and that Jones had beaten defendant to the point of a
potential concussion.
During a break in the cross-examination, the judge scheduled the Gross
hearing for the following day. At that colloquy, the assistant prosecutor
announced that if the court granted the State's motion to admit the recorded
statements as substantive evidence, the State would not thereafter pose questions
to Cundiff about those statements in front of the jury. The judge then addressed
defense counsel:
The Okay. So if—if that is so, then I'm just reminding
court: you, this will be the conclusion of your opportunity
to cross-examine Mr. Cundiff. As I indicated
earlier, should [the State] take a different approach,
of course, then if [the State] asks any further
questions on re-direct, you get re-cross.
Defense There you go.
Counsel:
The Okay?
court:
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20
Defense Okay.
Counsel:
Defense counsel then resumed his cross-examination of Cundiff before
the jury. After the court excused Cundiff for the day, counsel announced that
he had concluded his cross-examination. Counsel explained, "I'm telling
everybody now, I'm withdrawing [my final question that drew an objection] and
then resting on that examination. I'm done. So I'm withdrawing the question
and then saying I have no further questions. That's what I intend to do
tomorrow."
The next day, as it had previously indicated, the State conducted its re-
direct examination of Cundiff but did not address the substance of Cundiff's
statements to police. Counsel did not argue at that time that the trial court had
impinged on defendant's right of confrontation.
We begin our analysis of defendant's confrontation clause contention by
acknowledging certain foundational principles. Under N.J.R.E. 611(a), the trial
court is entrusted with "reasonable control over the mode and order of
interrogating witnesses and presenting evidence to (1) make those procedures
effective for determining the truth; (2) avoid wasting time; and (3) protect
witnesses from harassment or undue embarrassment." N.J.R.E. 611(b) further
provides, "[c]ross-examination should not go beyond the subject matter of the
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21
direct examination and matters affecting the witness's credibility." However,
the court "may allow inquiry into additional matters as if on direct examination."
Ibid.
As a general matter, our review of a judge's application of N.J.R.E. 611(b)
is limited. "The conduct of a trial, including cross-examination and its
appropriate limits, is within the discretion of the trial court. Persley v. New
Jersey Trans. Bus Ops., 357 N.J. Super. 1, 9 (App. Div. 2003) (citing Casino
Reinv. Dev. Auth. v. Lustgarten, 332 N.J. Super. 472, 492 (App. Div. 2000) and
N.J.R.E. 611(b)). "Exercise of that discretion is ordinarily not interfered with
unless there is a clear abuse of discretion which has deprived a party of a fair
trial." Ibid. (citing Daisey v. Keene Corp., 268 N.J. Super. 325, 334 (App. Div.
1993)).
Defendant now posits that the trial judge somehow violated defendant's
Sixth Amendment right to confrontation by enforcing the familiar rule that
cross-examination should not exceed the scope of the direct examination that
precedes it. We reject that argument. The record belies any claim that defense
counsel was precluded from posing questions to Cundiff concerning the
recorded statements the witness had previously given to police; indeed, the judge
afforded counsel ample opportunity to conduct an exhaustive cross-examination
A-5002-17
22
of Cundiff concerning those prior statements. Counsel took full advantage of
that opportunity. 5 Counsel also was given fair notice and acknowledged that
there might be no further opportunity to pursue that line of questions dependi ng
upon the scope of the prosecutor's re-direct examination.
We add that defendant has not specified any question(s) that her counsel
was precluded from posing by the judge's decision to enforce the general rule
set forth in N.J.R.E. 611(b). We therefore conclude that defendant was not
deprived of the right to a fair trial. To the contrary, defendant was given a full
and fair opportunity at trial to confront the evidence the State presented against
her, including Cundiff's prior inconsistent statements that were admitted as
substantive evidence.
IV.
We next address defendant's contention the assistant prosecutor
committed misconduct warranting a new trial. During his summation, the
prosecutor commented that the jury could infer defendant's guilt from Cundiff's
call to 9-1-1 and from the fact that defendant had not called 9-1-1 despite being
5
We note also that defense counsel was permitted to thoroughly cross-examine
Detective Zaiton regarding the statement he took from Cundiff.
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23
accosted and beaten by Jones. The prosecutor referred to a portion of the 9 -1-1
call in which Cundiff stated that defendant "fucked up her fucking career."
The prosecutor also commented on the text messages between Cundiff and
defendant in the days following the incident, remarking that defendant's text
message in which she explained that she did not call 9-1-1 because she did not
want to make trouble made no sense. Specifically, the prosecutor remarked,
"Did you ever hear a cop say don't call 9-1-1 if you got a problem? Don't do
that. Why would she fear trouble unless she had done something wrong?"
The prosecutor also told the jury:
[a] police officer does not have the luxury of getting a
pass after having a few drinks and then making a bad
decision with her firearm. That firearm gives police
officers the power of deadly force, life and death.
We ask a lot of them. At a minimum, we ask them to
exercise good judgment. We are not saying you can't
have fun. You want to drink? Absolutely. Leave your
gun at home. You want to carry your gun across state
lines out of jurisdiction and go out? Fine, just don't
drink.
The use of this weapon in the manner in which
defendant used it is inexcusable. This is life and death
in my hand.
A-5002-17
24
After the assistant prosecutor completed his summation, defense counsel
moved for a mistrial, claiming that the prosecutor impermissibly sought to shift
the burden of proof onto defendant.
The trial judge denied the motion for mistrial, concluding the prosecutor's
closing remarks were neither an attempt to shift the burden of proof nor an
appeal to emotions. The judge instead found that the prosecutor had highlighted
the illogic of a police officer's decision not to call 9-1-1 after being assaulted
and injured, and further determined that (1) the evidence supported the
prosecutor's premise that defendant indeed consumed alcohol that night, (2) the
prosecutor did not act improperly in suggesting that defendant's alcohol
consumption could have played a role in her decisions that night, and (3) the
prosecutor's comment regarding her alcohol consumption neither prejudiced nor
improperly shifted the burden of proof to defendant, particularly since both sides
contended that defendant was not intoxicated despite her alcohol consumption.
On appeal, defendant further characterizes the prosecutor's summation as an
"impermissible emotional plea to the jury" and a "call to arms" that "empowered
the jury to convict based on partisanship and outrage."
Our Supreme Court has recognized that "[p]rosecutors in criminal cases
are expected to make vigorous and forceful closing arguments to juries[,]" and
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25
that prosecutors are afforded "considerable leeway in closing arguments so long
as their comments are reasonably related to the scope of the evidence presented."
State v. Timmendequas, 161 N.J. 515, 587 (1999) (citing State v. Harris, 141 N.J. 525, 559 (1995)). As we have previously observed, "instances of
prosecutorial excesses in the course of summation seem to come to this court
with numbing frequency." State v. Marquez, 277 N.J. Super. 162, 172 (App.
Div. 1994) (quoting State v. Watson, 224 N.J. Super. 354, 362 (App. Div.
1988)). "However, not every deviation from perfection on the part of a
prosecutor warrants a reversal of a conviction." State v. Darrian, 255 N.J. Super.
435, 453 (App. Div. 1992) (citing State v. Bucanis, 26 N.J. 45, 56 (1958)).
Indeed, we have "steadfastly adhered to the view that in order to warrant
reversal, 'the improper conduct must have resulted in substantial prejudice to the
defendant's fundamental right to have a jury fairly assess the persuasiveness of
[her] case.'" Marquez, 277 N.J. Super. at 172–73 (quoting Darrian, 255 N.J.
Super. at 453). A new trial is warranted, therefore, only when a prosecutor's
closing comments are "'clearly and unmistakably improper,' and . . .
substantially prejudiced defendant's fundamental right to have a jury fairly
evaluate the merits of [her] defense." State v. Wakefield, 190 N.J. 397, 438
(2007) (quoting State v. Papasavvas, 163 N.J. 565, 625 (2000)).
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26
We apply these general principles to the prosecutor's summation and
affirm. First, we agree with the trial judge that the prosecutor's closing
statements regarding an off-duty police officer drinking and bringing a gun
across state borders were not "emotional pleas" that would substantially
prejudice defendant. We note that the trial judge had the opportunity to view
the prosecutor's summation firsthand and thus was able to gauge its impact on
the jury. Wakefield, 190 N.J. at 485–86 (acknowledging that trial judges "ha[ve]
the feel of the case and [are] best equipped to gauge the effect of a prejudicial
comment on the jury in the overall setting." (quoting State v. Loftin, 146 N.J.
295, 365–66 (1996))). We are satisfied, moreover, that all of the prosecutor's
remarks were reasonably related to evidence that was introduced at trial.
Timmendequas, 161 N.J. at 587.
We also agree with the trial judge that the prosecutor's reference to
defendant's decision not to call 9-1-1 did not seek to shift the burden of proof.
We believe it was permissible for the State to argue, based on the evidence
presented, that defendant did not call 9-1-1 because she did not want an official
investigation of the circumstances of the confrontation and ensuing weapons
discharge.
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27
Furthermore, the assistant prosecutor never suggested in his summation
that defendant had the burden of proving who pulled the trigger. Rather, he
argued, based on the evidence the jury heard, that it was improbable that either
Cundiff or Jones fired at Cundiff's vehicle. We add that the jury was properly
and repeatedly instructed that the State bore the burden of proving defendant 's
guilt beyond a reasonable doubt.
In sum, although the State's summation was vigorous and forceful,
Timmedequas, 161 N.J. at 587, the assistant prosecutor focused on the evidence
that had been admitted and why that evidence proved that it was defendant w ho
fired the gun at Cundiff's vehicle, constituting an unlawful purpose within the
meaning of N.J.S.A. 2C:39-4. We thus see no reason to disturb the trial judge's
denial of defendant's motion for a mistrial based on prosecutorial misconduct.
V.
Defendant claims for the first time on appeal that the trial judge erred by
failing to sua sponte provide the "false in one, false in all" model jury charge,
and by failing to sua sponte instruct the jury on "third-party guilt." We disagree.
The trial judge convened a charge conference at which counsel was afforded
ample opportunity to make requests for specific jury charges. Neither party
requested either of these charges.
A-5002-17
28
Although we generally decline to address issues not properly raised before
the trial court where there existed an opportunity to do so, Nieder v. Royal
Indemn. Ins. Co., 62 N.J. 229, 234 (1973), in this instance we elect to address
defendant's newly minted contentions on their merits. See also R. 2:10-2 ("Any
error or omission shall be disregarded by the appellate court unless it is of such
a nature as to have been clearly capable of producing an unjust result[.]"). We
review both of defendant's contentions under the plain error standard.
Wakefield, 190 N.J. at 473; see also State v. Montalvo, 229 N.J. 300, 320 (2017)
(holding where a defendant does not object to the jury charge, "there is a
presumption that the charge was not error and was unlikely to prejudice the
defendant's case" (quoting State v. Singleton, 211 N.J. 157, 182 (2012))).
We first address the "false in one, false in all" charge. 6 It is long-settled
law that the decision to give this instruction rests in the discretion of the trial
6
In State v. Young, we recognized that
[t]he "false in one, false in all" charge instructs the jury
that if the jurors find that any witness 'willfully or
knowingly testified falsely to any material facts in the
case, with intent to deceive [them], [the jury] may give
such weight to his or her testimony as [they] may deem
it is entitled.
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29
judge. See State v. Ernst, 32 N.J. 567, 583–84 (1960) ("[A] trial judge in his [or
her] discretion may give the charge in any situation in which he [or she]
reasonably believes a jury may find a basis for its application.").
In this case, we believe it was sufficient that the trial judge instructed the
jurors that they were the sole finders of the facts and that it was their
responsibility to determine the credibility of the witnesses and the weight to give
to the evidence. The general instructions that were provided to the jury provided
ample explanation as to how they should perform those factfinding tasks.
Although providing the "false in one, false in all" charge may have been
appropriate had defendant requested it, the absence of a sua sponte instruction
was not error, much less plain error capable of producing an unjust result. R.
1:7-5.
We likewise reject defendant's contention that the trial judge was obliged
sua sponte to give a third-party guilt instruction. 7 As noted, neither party
[ 448 N.J. Super. 206, 228 (App. Div. 2017) (alterations
in original) (quoting Model Jury Charge (Criminal),
"False in One False in All" (1991)).]
7
The third-party guilt model jury charge reads as follows:
The defendant contends that there is evidence before
you indicating that someone other than he or she may
A-5002-17
30
requested this charge even though both sides agreed that a key disputed issue at
trial was whether defendant was the person who fired the shot into Cundiff's car.
Although the State bears the burden of proving a defendant's guilt, an
accused is constitutionally entitled to prove his or her innocence or to persuade
the fact finder of a reasonable doubt about guilt by suggesting that someone else
committed the crime charged. See State v. Jiminez, 175 N.J. 475, 486 (2003);
have committed the crime or crimes, and that evidence
raises a reasonable doubt with respect to the
defendant’s guilt.
In this regard, I charge you that a defendant in a
criminal case has the right to rely on any evidence
produced at trial that has a rational tendency to raise a
reasonable doubt with respect to his/her own guilt.
I have previously charged you with regard to the State's
burden of proof, which never shifts to the defendant.
The defendant does not have to produce evidence that
proves the guilt of another but may rely on evidence
that creates a reasonable doubt. In other words, there is
no requirement that this evidence proves or even raises
a strong probability that someone other than the
defendant committed the crime. You must decide
whether the State has proven the defendant's guilt
beyond a reasonable doubt, not whether the other
person or persons may have committed the crime(s).
[Model Jury Charges (Criminal), "Third-Party Guilt"
(approved Mar. 9, 2015).]
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31
see also State v. Koedatich, 112 N.J. 225, 297 (1988). To be admissible,
evidence of another's guilt need not be conclusive, and it "need not [constitute]
substantial proof of a probability that the third person committed the act."
Jiminez, 175 N.J. at 486. On the other hand, the theory cannot be speculative.
Instead, "[s]omewhere in the total circumstances there must be some thread
capable of inducing reasonable [persons] to regard the event as bearing upon the
State's case." Id. at 487 (quoting State v. Sturdivant, 31 N.J. 165, 179 (1959)).
In this instance, defense counsel argued in summation that no witness
could say who fired defendant's gun. The prosecutor countered that Cundiff had
no motive to damage his own vehicle, and Jones first learned that defendant was
an armed off-duty police officer only moments before the gunfire erupted. We
add that the gun that fired the bullet recovered inside Cundiff's vehicle was
found in defendant's vehicle when she was stopped by police in response to the
9-1-1 call shortly after the shooting.
We note there was no testimony that either Jones or Cundiff ever took
control of defendant's weapon, much less discharged it and returned it to her
before she left the scene of the shooting. We reiterate that the weapon was found
in her purse, inside her car after the 9-1-1 call. Notwithstanding the speculative
nature of defendant's argument, we believe that the trial judge could have
A-5002-17
32
exercised his broad discretion to instruct the jury on third-party guilt had it been
requested. The absence of such a sua sponte instruction, however, does not
amount to plain error.
Considering the jury charge as a whole in light of the arguments of
counsel, we are satisfied the jurors were properly instructed as to their role in
determining whether defendant or someone else discharged the weapon. See
State v. Marshall, 123 N.J. 1, 145 (1991) ("[T]he prejudicial effect of an omitted
instruction must be evaluated 'in light of the totality of the circumstances —
including all the instructions to the jury, and the arguments of counsel.'"
(quoting Kentucky v. Whorton, 441 U.S. 786, 789 (1979))). The jury
instructions made clear, moreover, that the State bore the burden of proving that
defendant possessed the firearm for an unlawful purpose beyond a reasonable
doubt. In these circumstances, the failure to provide a specific third-party guilt
charge in the absence of a request for that instruction by defense counsel was
not capable of producing an unjust result. R. 1:7-5.
VI.
Finally, we turn to defendant's contention that the sentencing court abused
its discretion by refusing to sentence defendant in accordance with N.J.S.A.
2C:44-1(f). That statute reads in pertinent part,
A-5002-17
33
In cases of convictions for crimes of the first or second
degree where the court is clearly convinced that the
mitigating factors substantially outweigh the
aggravating factors and where the interests of justice
demands, the court may sentence the defendant to a
term appropriate to a crime of one degree lower than
the crime for which he was convicted.
The sentencing judge found that six mitigating factors applied, 8 and that
these mitigating factors substantially outweighed the sole aggravating factor, the
need to deter defendant and others. N.J.S.A. 2C:44-1(a)(9). The sentencing
judge also found, however, that defendant failed to demonstrate compelling
reasons needed to satisfy the interest of justice standard.
The downgrade provisions of N.J.S.A. 2C:44-1(f)(2) have been
extensively construed and interpreted by case law. When a trial court considers
imposing a sentence one degree lower than the crime for which a defendant has
been convicted, it must apply a two-step analytical process. State v. Rice, 425 N.J. Super. 375, 384 (App. Div. 2012). First, the judge must be clearly
8
The court found the following mitigating factors: defendant acted under strong
provocation, N.J.S.A. 2C:44-1(b)(3); there were substantial grounds tending to
excuse or justify defendant's conduct, though failing to establish a defense,
N.J.S.A. 2C:44-1(b)(4); the victim of defendant's conduct induced or facilitated
its commission, N.J.S.A. 2C:44-1(b)(5); defendant has no prior criminal history,
N.J.S.A. 2C:44-1(b)(7); defendant's conduct was the result of circumstances
unlikely to recur, N.J.S.A. 2C:44-1(b)(8); and defendant's character and attitude
indicated that she was unlikely to commit another offense, N.J.S.A. 2C:44- -
1(b)(9).
A-5002-17
34
convinced that the mitigating factors substantially outweigh the aggravating
ones. Second, the defendant must present compelling reasons why the interest
of justice demands a downgraded sentence. State v. L.V., 410 N.J. Super. 90,
109 (App. Div. 2009) (citing State v. Megargel, 143 N.J. 484, 496 (1996)). As
the Supreme Court emphasized in Megargel, "the standard governing
downgrading is high." 143 N.J. at 500.
To aid in the analytical process, the Court in Megargel identified several
factors for the sentencing court to consider, including: "the degree of the crime
[which] is the focus of the sentence"; whether "[t]he surrounding circumstances
of an offense may make it very similar to a lower degree offense"; and "facts
personal to the defendant," including his or her "role in the incident." Id. at
500–01.
Importantly, the Court made clear that the reasons justifying a downgrade
must not only be "compelling," but must be based on circumstances in addition
to and separate from the mitigating factors that substantially outweigh the
aggravating factors. Id. at 505. Furthermore, "in those cases in which the
Legislature has acted to provide an enhanced penalty for conviction of a
particular offense, the downgrade of that offense requires more compelling
A-5002-17
35
reasons than the downgrade of an offense for which the Legislature has not
attached an enhanced penalty." Id. at 502.
The record before us shows that the sentencing judge thoughtfully applied
the Megargel factors and determined that the reasons for the sentencing
downgrade proffered by defendant could not be distinguished from the
mitigating factors the judge had already accounted for. The sentencing judge
also reasoned that the bar for establishing compelling reasons under N.J.S.A.
2C:44-1(f) was set even higher in this case due to the enhanced punishment for
handgun offenses prescribed by the Graves Act. 9
The judge ultimately concluded that defendant failed to establish a
sufficiently compelling reason to justify a sentencing downgrade. In reaching
that conclusion, the judge explained that defendant was a highly trained law
enforcement officer, she was not being attacked when she fired her handgun, she
was drinking for a significant period of time—although not so intoxicated that
she did not appreciate her actions—and she was in a family residential
9
We note that N.J.S.A. 2C:43-6(c) requires that a person convicted for a
violation of N.J.S.A. 2C:39-4(a) be sentenced to a minimum term of parole
ineligibility fixed at not less than forty-two months. The sentencing judge in
this case thus would have been required to impose the mandatory minimum
forty-two-month period of parole ineligibility even if defendant had been
sentenced under N.J.S.A. 2C:43-1(f) to a prison term appropriate to a third-
degree conviction.
A-5002-17
36
neighborhood when she discharged her weapon on the street. Accordingly, the
judge imposed a prison sentence at the bottom of the second-degree range.10
"Our role in reviewing a sentence imposed by a trial judge is limited."
L.V., 410 N.J. Super. at 107. We review only
(1) whether the exercise of discretion by the sentencing
court was based upon findings of fact grounded in
competent, reasonably credible evidence; (2) whether
the sentencing court applied the correct legal principles
in exercising its discretion; and (3) whether the
application of the facts to the law was such a clear error
of judgment that it shocks the conscience."
[State v. Megargel, 143 N.J. at 493 (citing State v. Roth,
95 N.J. 334, 363–65 (1984)).]
We conclude the sentencing judge's decision not to invoke the sentence
downgrade feature was based on well-supported findings of fact, and correctly
applied the governing principles of law. Nor does the five-year term of
imprisonment shock the judicial conscience, especially considering that a forty -
two-month parole ineligibility term was statutorily mandated. See supra note 9.
Although we affirm the sentence imposed on defendant's firearms
conviction, we are constrained to remand this matter for resentencing on
10
We note the second and third-degree ranges overlap. See N.J.S.A. 2C:43-
6(a)(1) and (2). The five-year prison term defendant received is at the bottom
of the second-degree range and the top of the third-degree range.
A-5002-17
37
defendant's criminal mischief conviction. Defendant and the State agree that the
judge erred in sentencing defendant as if she had been convicted of fourth -
degree criminal mischief as was originally charged in the indictment. As we
have noted, the trial judge downgraded the mischief count from a fourth -degree
crime to a disorderly persons offense based on the State's failure to present
evidence that the damage caused to Cundiff's vehicle exceeded $500. See supra
note 1. We therefore remand for the court to impose a new sentence on the
disorderly person conviction and to correct the judgment of conviction. We
affirm the convictions for possession of a firearm for an unlawful purpose and
criminal mischief, and affirm the sentence imposed on the firearms conviction.
Affirmed in part; remanded for resentencing in accordance with this
opinion. We do not retain jurisdiction.
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38
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