STATE OF NEW JERSEY v. MICHELLE J. HURLEY
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APPROVAL OF THE APPELLATE DIVISION
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-4707-18
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
MICHELLE J. HURLEY,
Defendant-Appellant.
_______________________
Submitted January 3, 2022 – Decided March 15, 2022
Before Judges Sumners and Firko.
On appeal from the Superior Court of New Jersey, Law
Division, Hudson County, Indictment No. 16-05-0665.
Joseph E. Krakora, Public Defender, attorney for
appellant (Andrew R. Burroughs, Designated Counsel,
on the briefs).
Esther Suarez, Hudson County Prosecutor, attorney for
respondent (Daniel J. Gilbert, Assistant Prosecutor, on
the brief).
PER CURIAM
In two separate trials, juries found defendant Michelle J. Hurley guilty of
second-degree reckless manslaughter, second-degree aggravated assault,
third-degree possession of a weapon for an unlawful purpose, and fourth-degree
unlawful possession of a weapon. The offenses arose from the death of her
husband, David Hurley; the juries rejected defendant's claim of self-defense.
Following merger, defendant was sentenced to an aggregate eight-year prison
term subject to an eighty-five percent period of parole ineligibility under the No
Early Release Act (NERA), N.J.S.A. 2C:43-7.2.
In her appeal, she argues:
POINT I
THE TRIAL COURT ERRED WHEN IT DENIED
DEFENDANT'S MOTION TO DISMISS THE
INDICTMENT.
POINT II
AS THE STATE FAILED TO PROVE THE MANNER
OF DEATH AND TO ESTABLISH THAT
DEFENDANT ACTED RECKLESSLY, THE TRIAL
COURT ERRED WHEN IT DENIED DEFENDANT'S
MOTION FOR ACQUITTAL ON THE
MANSLAUGHTER CHARGE.
POINT III
THE TRIAL COURT'S CUMULATIVE ERRORS
DENIED DEFENDANT A FAIR AND RELIABLE
TRIAL. (NOT RAISED BELOW).
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POINT IV
AS DEFENDANT WAS CONVICTED BY
UNRELIABLE AND QUESTIONABLE MEDICAL
EVIDENCE, BASIC FAIR PLAY AND
FUNDAMENTAL FAIRNESS REQUIRE A NEW
TRIAL. (NOT RAISED BELOW).
POINT V
GIVEN THE UNIQUE CIRCUMSTANCES OF THIS
CASE, THE IMPOSITION OF AN EIGHT[-]YEAR
PRISON SENTENCE WAS MANIFESTLY UNFAIR
AND EXCESSIVE.
Unpersuaded by any of these arguments, we affirm.
I
In late September 2015, defendant and David were in the process of
divorcing but continued to live in their Bayonne marital home, sleeping in
separate bedrooms. Hearing loud female screams, next-door neighbors Nicole
Rivera and her husband went to the Hurley home to see if help was needed.
After defendant opened the back door, Nicole went upstairs and saw David lying
unconscious on the bed with his head leaning over the foot of the bed.
Paramedics and the City of Bayonne police were summoned. David was
hospitalized and placed on life support; he died ten days later.
Following an investigation by the Hudson County Prosecutor's Office
(HCPO), accusations against defendant for causing David's death by
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strangulation with an electric lamp cord were presented to a grand jury. Based
on the testimony of Bayonne police detective Timothy Carey and HCPO
detective Sean O'Leary, defendant was indicted for: first-degree murder,
N.J.S.A. 2C:11-3(a)(1)/(2); first-degree aggravated manslaughter, N.J.S.A.
2C:11-4(a); second-degree reckless manslaughter, N.J.S.A. 2C:11-4(b)(1);
second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1); third-degree
possession of a weapon, an electric lamp cord, for an unlawful purpose, N.J.S.A.
2C:39-4(d); and fourth-degree unlawful possession of a weapon, an electric
lamp cord, N.J.S.A. 2C:39-5(d). Seven months later, the trial court denied
defendant's motion to dismiss the indictment.
Before us, defendant contends the trial court erred in denying her motion.
She avows that, based upon the prosecutor's improper questions, the "grand jury
hearing was a compilation of impermissible expert opinion, false allegations,
and conclusions not supported in the evidentiary record," which led to the
withholding of "exculpatory or contradictory evidence . . . from the jury."
Pointing to Carey's testimony, she asserts that, under the guise of a forensic
pathologist, he provided false, impermissible expert and conclusory testimony.
She states Carey was unqualified to testify: (1) David must have been
unconscious when defendant strangled him; (2) defendant ripped the cord off
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the wall in order to strangle David; (3) strangulation may have triggered David's
underlying medical conditions; (4) about anything regarding the parties' divorce;
and (5) that there was a restraining order between the defendant and David. As
to O'Leary, defendant maintains he testified as an unqualified medical expert
stating: (1) "the petechia[] observed in the whites of [David's] eyes was caused
by [his] neck or airway passage being compressed" by strangulation; (2) David's
alcohol level would not have rendered him unconscious at time of the incident;
and (3) it would only take a few minutes to strangle someone unconscious.
Generally, any claim of error in the indictment process is rendered
harmless by a guilty verdict. State v. Simon, 421 N.J. Super. 547, 551-52 (App.
Div. 2011). Thus, given defendant's convictions, we can reject her arguments
concerning the failure to dismiss the indictment outright with no discussion.
Nevertheless, for the sake of completeness, we explain why her arguments have
no merit.
Our review of the grand jury proceeding reveals there is no cause to
disturb the trial court's ruling because it neither abused its discretion nor
misapplied the law. See State v. Zembreski, 445 N.J. Super. 412, 424 (App.
Div. 2016) (holding we review a trial court's decision on a motion to dismiss an
indictment for a clear abuse of discretion); State v. Nash, 212 N.J. 518, 540-41
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(2013) (holding the trial court's legal conclusions are reviewed de novo). The
State did not, as defendant argues, elicit impermissible expert and conclusory
testimony from either Carey or O'Leary.
Given that rules of evidence do not apply to grand jury proceedings, In re
Grand Jury Subpoena Issued to Galasso, 389 N.J. Super. 281, 292 (App. Div.
2006), it was permissible for Carey to testify based on his twenty-four years'
experience as a detective, not as a forensic pathologist. He informed the grand
jury that defendant told him she choked David with the lamp cord, and he
reasoned that David was unconscious at the time she placed the cord around his
neck because of the significant difference in weight and height between him and
defendant;1 there were no signs of a fight; and there were no visible injuries on
defendant or David. Due to his prior experience as an electrician, Carey related
that the only way for the lamp cord to became unattached from the wall was for
defendant to yank if off.
Carey's testimony that David's other health issues would not have been
triggered but for him being "choked out" was consistent with the autopsy report
prepared by Union County Medical Examiner Dr. Junaid Shaikh. He testified
1
Carey stated defendant was five-feet five-inches weighing in the "170s," while
David was "at least 280, 290" pounds.
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that the medical examiner concluded the cause of death was homicide from
anoxic encephalopathy due to ligature neck compression, as well as hypertensive
heart disease, obesity, and amnestic diabetes mellitus.
Carey's testimony that there was "a restraining order [and] maybe a
violation of a restraining order" between the couple was promptly met with the
prosecutor's directive to the grand jury to disregard any references to a
restraining order because it had no bearing on the charges against defendant.
The jurors responded affirmatively. With this curative instruction, the
prosecutor did not "impinge on [the] grand jury's independence" or "improperly
influence its determination." State v. Francis, 191 N.J. 571, 587 (2007).
Turning to O'Leary's testimony, defendant's attack fails as his testimony
was based on his involvement in ligature deaths––some involving spouses––and
alcohol-related offenses during his thirteen years' experience in the HCPO's
Homicide Unit, not as a medical expert. He described petechia as "small,
pin-like blood vessel breakages in the whites of one's eyes," which was "most
commonly" caused by "compress[ing] the neck or the airway." He also testified
David's .11 blood alcohol level when he was taken to hospital, was "slightly
above the [.08] legal limit for driving," but would not prevent a person from
walking, talking, or defending oneself.
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In sum, neither Carey nor O'Leary gave grand jury testimony that was
improper or in any way demonstrated the "indictment is manifestly deficient or
palpably defective." State v. Twiggs, 233 N.J. 513, 531-32 (2018) (quoting
State v. Hogan, 144 N.J. 216, 228-29 (1996)). Accordingly, the grand jury was
able to fulfill its task of not establishing defendant's guilt beyond a reasonable
doubt, and "view[] the evidence and the rational inferences drawn [there]from .
. . in the light most favorable to the State, . . . [and] reasonably believe that
[crimes] occurred and that [] defendant committed [them]." State v. Morrison,
188 N.J. 2, 13 (2006). There was no prosecutorial misconduct in the grand jury
presentation.
II
At the end of the State's case, defendant made an unsuccessful Rule 3:18-1
motion for a judgment of acquittal. On appeal, essentially repeating arguments
rejected by the court, defendant asserts that the reckless manslaughter charge
should have been dismissed because the State's evidence failed to establish that
David died due to strangulation given the absence of any ligature marks around
his neck. She also argues the State failed to present any evidence that she knew
about his underlying medical conditions, which she contends were the cause of
death, not her admitted strangulation. We are unpersuaded.
A-4707-18
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"In assessing the sufficiency of the evidence on an acquittal motion, we
apply a de novo standard of review." State v. Williams, 218 N.J. 576, 593-94
(2014). When a defendant moves for acquittal following conclusion of the
State's case, the trial court "must determine whether, based on the entirety of the
evidence and after giving the State the benefit of all its favorable testimony and
all the favorable inferences drawn from that testimony, a reasonable jury could
find guilt beyond a reasonable doubt." Id at 594. "In assessing the sufficiency
of the evidence on an acquittal motion, we apply a de novo standard of review."
Id. at 593-94 (2014).
When "considering circumstantial evidence, we follow an approach 'of
logic and common sense. [If] each of the interconnected inferences [necessary
to support a finding of guilt beyond a reasonable doubt] is reasonable on the
evidence as a whole, judgment of acquittal is not warranted.'" State v. Jones,
242 N.J. 156, 168 (2020) (second alteration in original) (quoting State v.
Samuels, 189 N.J. 236, 246 (2007)). We only consider "the evidence on the
State's case, unaided by what defendant later developed at trial." State v.
Lemken, 136 N.J. Super. 310, 314 (App. Div. 1974).
Reckless manslaughter is a lesser-included offense of murder. State v.
Jenkins, 178 N.J. 347, 361 (2004). A person commits reckless manslaughter
A-4707-18
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when they consciously disregard a substantial and unjustifiable risk that death
will result from their conduct. N.J.S.A. 2C:11-4(b)(1); N.J.S.A. 2C:2-2(b)(3).
"The risk must be of such a nature and degree that . . . its disregard involves a
gross deviation from the standard of conduct that a reasonable person would
observe in the actor's situation." N.J.S.A. 2C:2-2(b)(3). The degree of risk for
recklessness must be more than "a mere possibility of death." State v. Curtis,
195 N.J. Super. 354, 364 (App. Div. 1984); see also State v. Galicia, 210 N.J.
364, 378 (2012) ("[W]hen it is only possible that death will result, the homicide
constitutes reckless manslaughter." (citing Curtis, 195 N.J. Super. at 364)).
In the present matter, the allegation of reckless manslaughter involved
defendant strangling her husband. Giving all reasonable inferences to the State's
evidence at the close of its case, the elements of second-degree reckless
manslaughter were satisfied. Defendant admitted to Carey and Bayonne police
officer Deena Mendez that she wrapped the lamp cord—which was admitted
into evidence—around David's neck. Carey and Mendez testified they did not
notice any injuries on defendant nor any disarray in the bedroom, which would
support defendant's self-defense claim.
There was ample medical evidence supporting the State's theory that
defendant's conduct caused David's death. Although none of the medical experts
A-4707-18
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observed visible ligature marks on David, Dr. Shaikh explained why minimal
marks were present on the victim's neck, concluding it was due to David's poor
health––hypertensive heart disease, obesity, and diabetes. Contrary to
defendant's argument that David suffered a stroke, Dr. Jawad Kirmani, who
treated David at the hospital, testified that David did "[n]ot stroke in the
traditional sense, but any cessation of the oxygen and blood flow to the brain
could be called [a] stroke." Dr. Hammad Choudhry, who examined David the
night he was taken to the emergency room, testified that he did not suffer a heart
attack or blood clots. As noted, Dr. Shaikh determined David's official cause of
death was anoxic encephalopathy due to ligature neck compression, with the
contributory causes of hypertensive heart disease, obesity, and diabetes. In
addition, Dr. Kirmani examined David's eyes and observed he had petechial
hemorrhages, "that could be reflective of possible strangulation." Accordingly,
defendant's motion for acquittal was properly denied by the court.
III
Defendant contends she was deprived of a fair trial because of the trial
court's cumulative errors in not granting her motions to dismiss the indictment
and for judgment of acquittal. When multiple errors are alleged, "the predicate
for relief for cumulative error must be that the probable effect of the cumulative
A-4707-18
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error was to render the underlying trial unfair." State v. Wakefield, 190 N.J.
397, 538 (2007). However, even where a defendant alleges multiple errors, "the
theory of cumulative error will still not apply where no error was prejudicial and
the trial was fair." State v. Weaver, 219 N.J. 131, 155 (2014). Given our
conclusions that there were no trial errors regarding the motion rulings, there
was no cumulative effect that denied defendant a fair trial.
IV
Defendant contends the doctrine of basic fair play and fundamental
fairness entitles her to a new trial because she was convicted based on unreliable
and questionable medical evidence. She maintains the State's witnesses and
autopsy report failed to show David died due to strangulation, and that the State
failed to present evidence establishing that she and David knew of his underlying
medical conditions. Although these arguments were raised in the context of her
motions to dismiss the indictment and judgment of acquittal, they were not
raised before the trial court to substantiate a claim that she was denied
fundamental fairness. Thus, we review for plain error under Rule 2:10-2,
meaning an "error possessing a clear capacity to bring about an unjust result and
which substantially prejudiced the defendant's fundamental right to have the jury
fairly evaluate the merits of his [or her] defense." State v. Timmendequas, 161
A-4707-18
12 N.J. 515, 576-77 (1999) (quoting State v. Irving, 114 N.J. 427, 444 (1989)). A
reversal based on plain error requires us to find that the error likely led to an
unjust result that is "sufficient to raise a reasonable doubt as to whether the error
led the jury to a result it otherwise might not have reached." State v. Williams,
168 N.J. 323, 336 (2001) (quoting State v. Macon, 57 N.J. 325, 336 (1971)).
The fundamental fairness doctrine derives from an implied judicial
authority to create appropriate and just remedies and to assure the efficient
administration of the criminal justice system. State v. Abbati, 99 N.J. 418, 427
(1985). The Supreme Court has described this doctrine as "an integral part of
due process" that "is often extrapolated from or implied in other constitutional
guarantees." State v. Miller, 216 N.J. 40, 71 (2013) (quoting Oberhand v. Dir.,
Div. of Tax'n, 193 N.J. 558, 578 (2008)); see also Abbati, 99 N.J. at 429.
The doctrine is applied "sparingly" and only where the "interests involved
are especially compelling"; thus, if a defendant would be subject "to oppression,
harassment, or egregious deprivation," it is applied. Doe v. Poritz, 142 N.J. 1,
108 (1995) (quoting State v. Yoskowitz, 116 N.J. 679, 712 (1989) (Garibaldi,
J., concurring and dissenting)). It can be applied "at various stages of the
criminal justice process even when such procedures were not constitutionally
compelled." Ibid. The doctrine's "primary considerations should be fairness
A-4707-18
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and fulfillment of reasonable expectations in the light of the constitutional and
common law goals." Yoskowitz, 116 N.J. at 706 (emphasis omitted) (quoting
State v. Currie, 41 N.J. 531, 539 (1964)).
The doctrine is an "elusive concept" and its "exact boundaries are
undefinable." Id. at 704-05 (internal quotation marks omitted). "For the most
part, it has been employed when the scope of a particular constitutional
protection has not been extended to protect a defendant." Id. at 705.
Defendant's argument fails to establish the type of unquestionably unfair
circumstances that have garnered judicial support for application of the doctrine
of fundamental fairness. First and foremost, as noted above, we reject
defendant's challenge to the State's medical proofs of David's cause of death
raised in support her claims that the trial court erred in denying her motions to
dismiss the indictment and judgment of acquittal. Because we concluded the
State's medical evidence was sufficient to defeat those challenges, there is no
reason to find the evidence was unreliable and thus supports a reversal of
defendant's convictions caused by a denial of fundamental fairness. That said,
we address the case law she relies upon.
In claiming the doctrine of fair play and fundamental fairness entitled her
to a new trial, defendant relies upon four cases: State v. Maisonet, 166 N.J. 9
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(2001); Poritz; State v. Tropea, 78 N.J. 309 (1978); and State v. Baker, 310 N.J.
Super. 128 (App. Div. 1998). None of these cases implicate the same factual or
legal circumstances presented by defendant.
In Maisonet, the defendant was forced to appear for a jury trial over
several days in a dirty and disheveled condition having been denied access to
soap, running water, toothpaste, or a comb. 166 N.J. at 13-21. In Poritz, the
doctrine of fundamental fairness required the institution of constitutional
procedural protections to determine classification of convicted sex offenders
who would be subject to community supervision and notification provisions.
142 N.J. at 108-09. In Tropea, double jeopardy precluded remand for retrial of
a motor vehicle speeding violation when the State failed to introduce evidence
of an essential element of proof––the speed limit. 78 N.J. 309, 311-16. In
Baker, fundamental fairness precluded the State from seeking the death penalty
based on deliberate prosecutorial misconduct in seizing juror notes and releasing
them to the press after conviction but before the penalty phase had commenced.
310 N.J. Super. at 138.
Unlike in Maisonet, Poritz, Tropea, and Baker, defendant's fundamental
fairness argument is not based upon his appearance before the jury,
constitutional privacy concerns, double jeopardy issues, or prosecutorial
A-4707-18
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invasion of the jury's deliberative processes. Indeed, we favor the State's
argument that State v. Loray, 41 N.J. 131 (1963), is more analogous to this
matter. There, the murder victim had a pre-existing heart condition. Id. at 140.
The Court held that although the primary cause of death was heart failure, "the
precipitating and contributory causes were the injuries resulting from the
assault" by the defendant. Ibid. The Court noted:
The fact that a victim of an assault is in a weakened
condition or suffers from disease and as a result
succumbs to a blow which might not be fatal to a person
in perfect health does not lessen the criminal
responsibility for causing death. We know of no duty
imposed upon a victim to supply a guarantee of good
health to a robber.
[Ibid.]
Here, the testifying physicians all recognized that David's health maladies
worsened his ability to recover but concluded the primary cause of death was
lack of oxygen to the brain caused by ligature strangulation. We are convinced
that no manifest injustice occurred in the jury's verdict due to unreliable and
questionable medical evidence.
V
At sentencing, the trial court applied aggravating factor nine, N.J.S.A.
2C:44-1(a)(9) (the need for deterrence), and mitigating factor seven, N.J.S.A.
A-4707-18
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2C:44-1(b)(7) (no prior criminal record), finding "the aggravating factor[]
preponderate[s] over the mitigating factor[]." Consequently, defendant was
sentenced to an eight-year prison term subject to NERA for the second-degree
reckless manslaughter. The convictions for second-degree aggravated assault
and third-degree possession of a weapon for an unlawful purpose were merged
with the reckless manslaughter conviction. On the fourth-degree unlawful
possession of a weapon conviction, defendant was sentenced to a fifteen-month
prison term to run concurrent with the reckless manslaughter conviction.
On appeal, defendant contends her eight-year sentence was excessive.
She argues the court should have applied mitigating factors three, N.J.S.A.
2C:44-1(b)(3) ("defendant acted under a strong provocation"), four, N.J.S.A.
2C:44-1(b)(4) ("[t]here were substantial grounds tending to excuse or justify . . .
defendant's conduct, though failing to establish a defense"), eight, N.J.S.A.
2C:44-1(b)(8) (the offense was "the result of circumstances unlikely to recur");
and nine, N.J.S.A. 2C:44-1(b)(9) (the defendant's character and attitude
"indicate that the defendant is unlikely to commit another offense") . A lighter
sentence is appropriate because, according to her, these four mitigating factors,
plus the applied mitigating factor seven, outweigh the single aggravating factor
the court found.
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Review of a criminal sentence is limited; a reviewing court must decide,
"whether there is a 'clear showing of abuse of discretion.'" State v. Bolvito, 217 N.J. 221, 228 (2014) (quoting State v. Whitaker, 79 N.J. 503, 512 (1979)).
Under this standard, a criminal sentence must be affirmed unless "(1) the
sentencing guidelines were violated; (2) the findings of aggravating and
mitigating factors were not 'based upon competent credible evidence in the
record;' or (3) 'the application of the guidelines to the facts' of the case 'shock[s]
the judicial conscience.'" Ibid. (alteration in original) (quoting State v. Roth, 95 N.J. 334, 364-65 (1984)). If a sentencing court properly identifies and balances
the factors and their existence is supported by sufficient credible evidence in the
record, this court will affirm the sentence. See State v. Carey, 168 N.J. 413,
426-27 (2001); State v. Megargel, 143 N.J. 484, 493-94 (1996).
Defendant's contentions are without sufficient merit to warrant discussion,
R. 2:11-3(e)(2), and we affirm substantially for the reasons stated by the court
expressed at sentencing. We only add that the court addressed defendant's
sentencing arguments and there is support in the record for its decision not to
apply mitigating factors three, four, eight, and nine. In sum, the sentence does
not shock our judicial conscience.
A-4707-18
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Affirmed.
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