1. Art and Diseño

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-4663-11T1
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
SHAWN SOUTHERLAND, a/k/a
KEITH DAVIS and SHAWN
OBEE,
Defendant-Appellant.
___________________________________
Argued: January 13, 2015 – Decided: January 30, 2015
Before Judges Reisner, Haas and Higbee.
On appeal from Superior Court of New Jersey,
Law Division, Hudson County, Indictment No.
09-10-1750.
Joshua D.
Defender,
(Joseph
attorney;
brief).
Sanders, Assistant Deputy Public
argued the
cause for appellant
E.
Krakora,
Public
Defender,
Mr. Sanders, of counsel and on the
Ryan
Gaffney,
Special
Deputy
Attorney
General/Acting Assistant Prosecutor, argued
the
cause
for
respondent
(Gaetano
T.
Gregory, Acting Hudson County Prosecutor,
attorney; Michelle E. Ditzhazy, Special
Deputy
Attorney
General/Acting
Assistant
Prosecutor, on the brief).
Appellant filed a pro se supplemental brief.
PER CURIAM
A
Hudson
indictment
County
charging
grand
defendant
jury
returned
a
Shawn
Southerland
three-count
with
first-
degree murder, N.J.S.A. 2C:11-3(a)(1) or (2) (count one); thirddegree
hindering
apprehension
or
prosecution
by
way
of
concealment or destruction, N.J.S.A. 2C:29-3(b)(1) (count two);
and third-degree hindering apprehension or prosecution by giving
false information to a law enforcement officer, N.J.S.A. 2C:293(b)(4) (count three).
Defendant filed a motion to waive his
right to an attorney and to represent himself.
On February 18,
2011, the court granted defendant's motion and appointed his
public
defender
thereafter
to
denied
serve
as
standby
defendant's
counsel.
subsequent
The
motions
for
court
the
appointment of new standby counsel.
Over the course of the pre-trial proceedings, the court
denied defendant's motions to suppress certain evidence.
The
court also denied defendant's motions to dismiss the indictment,
although, on November 10, 2011, the court granted defendant's
motion to dismiss count three of the indictment.
On December 7,
2011, the court granted defendant's motion to waive his right to
a trial by jury.
Judge Francis B. Schultz conducted a nine-day bench trial
on various dates between January 10, 2012 and February 1, 2012.
2
A-4663-11T1
On February 1, 2012, the judge rendered a comprehensive oral
decision finding defendant guilty of counts one and two.
On March 16, 2012, Judge Schultz denied defendant's motion
for acquittal and for a new trial.
On that same date, the judge
sentenced defendant to thirty years in prison, with a thirtyyear
period
of
parole
ineligibility
on
count
concurrent five-year prison term on count two.
ordered
defendant
to
serve
a
five-year
one,
and
to
a
The judge also
term
of
parole
supervision upon his release, and imposed appropriate fines and
penalties.
This appeal followed.
On appeal, defendant has raised the following contentions:
POINT I
STANDBY COUNSEL WAS PER SE INEFFECTIVE IN
THIS MATTER THEREBY VIOLATING [DEFENDANT'S]
FEDERAL AND STATE CONSTITUTIONAL RIGHTS TO
DUE PROCESS AND A FAIR TRIAL.
A.
Once
Assigned
As
Standby
Counsel,
Standby Counsel Must Provide Effective
Assistance to Pro Se Defendants.
B.
Standby
Counsel
Provided
Actual
Ineffective Assistance To [Defendant],
And/Or
The
Relationship
Between
[Defendant] And Standby Counsel Was
Such That The Court Should Have Granted
One Of [Defendant's] Numerous Motions
To Have Standby Counsel Replaced.
POINT II
THE MOTION TO SUPPRESS THE OUT-OF-COURT
IDENTIFICATIONS SHOULD HAVE BEEN GRANTED
BECAUSE
THE
STATE'S
FAILURE
TO
RECORD
3
A-4663-11T1
NECESSARY
DETAILS
OF
IDENTIFICATION PROCEDURE
STATE V. DELGADO
THE
WAS
PHOTOGRAPHIC
CONTRARY TO
Defendant filed a supplemental brief on his own behalf and
has raised the following contentions:
POINT [III]
THE TRIAL COURT COMMITTED REVERSIBLE ERROR
OF LAW BY GRANTING THE STATE'S MOTION TO
ADMIT ALLEGED NON[-]CUSTODIAL STATEMENT[S]
MADE TO BAYONNE POLICE OFFICER PONIK WHERE
ANY ALLEGED STATEMENT[S] WERE ACQUIRED AND
OBTAINED IN VIOLATION OF DEFENDANT'S RIGHT
AGAIN[S]T UNREASONABLE SEARCH AND SEIZURE
U.S. Const., Amend. IV and XIV[,] N.J.
Const., Art. 1, Par. 7 AND CONTRARY TO THE
WIRETAP ACT., N.J.S.A. 2A:156A-1, et. seq.,
AND
BECAUSE,
DEFENDANT
WAS
PREJUDICED
THEREBY, IS ENTITLED TO REVERSAL OF HIS
CONVICTION AND NEW TRIAL.
A.
Application Of Improper Standard
Determination Of State's Motion
Admit Certain Alleged Statement[s].
To
To
B.
Ponik Had No Prior Authorization To Set
Up Telephone Surveillance And Eavesdrop
Under The Wiretap Act.
C.
The Order Of The Trial Court Should Be
Suppressed R. 2:5-4.
POINT [IV]
THE MOTION TO SUPPRESS PONIK'S TESTIMONY
SHOULD HAVE BEEN GRANTED BECAUSE THE TRIAL
[COURT] COMMITTED REVERSIBLE ERROR OF LAW BY
RULING THAT THE OFFICER'S INTRUSION WHETHER
IT WAS FOR ONE HOUR OR SIX HOURS WAS NOT A
SEARCH[.]
THOMPSON V. LOUISIANA, 469 U.S.
17 (1984) (QUOTING MINCEY V. ARIZONA, 437
U.S. 389 (1978)[)]
4
A-4663-11T1
A.
Ponik's Apparent Lawful Entry Was Not
An Invitation To Convert Defendant's
Residence Into Sort Of Public Place For
Which No Warrant Would Be Necessary.
B.
Defendant Has A Proprietary, Possessory
And Property Interest In His Belongings
That Remained Inside His Apartment
There Was No Abandonment.
POINT [V]
DEFENDANT'S MOTION FOR JUDGMENT OF ACQUITTAL
OR FOR DISMISSAL OF INDICTMENT SHOULD BE
GRANTED FOR ABUSE OF PROCESS USE OR TAINTED
EVIDENCE
IN
GRAND
JURY
TO
ASSUME
JURISDICTION
N.J.S.A.
2C:1-3
a(1)
AS
ATTENDANT CIRCUMSTANCES IN VIOLATION OF U.S.
Const., Amend V AND XIV, AND DEFENDANT'S
CONSTITUTIONAL
RIGHT
TO
A
LEGALLY
CONSTITUTED GRAND JURY.
A.
The Tainted Evidence Permeates The
Indictment And Its Use At The Grand
Jury Violated Fundamental Fairness.
B.
The Indictment Was Palpably
And Manifestly Deficient.
Defective
POINT [VI]
THE TRIAL COURT COMMITTED PLAIN ERROR OF LAW
BY FAILING TO RECUSE HIMSELF SUA SPONTE ON
HIS OWN OBLIGATORY MOTION WHICH DENIED
DEFENDANT HIS DUE PROCESS RIGHT TO A FAIR,
UNBIASED,
IMPARTIAL
TRIAL
COURT
AS
GUARANTEED
BY
FEDERAL
AND
STATE
CONSTITUTION; [CANON] 3 C CODE OF JUDICIAL
CONDUCT AND R. 1:21-1 . . . WHICH REQUIRES
REVERSAL OF DEFENDANT'S CONVICTION AND NEW
TRIAL (Not Raised Below).
A.
The Trial Court Had To[o] Much Personal
Knowledge Of The Disputed Evidentiary
Facts To Sit As The Fact Finder.
5
A-4663-11T1
B.
The Trial Court Apparently Knew Prior
To
Trial
That
Defendant
Had
Been
Involved In Plea Discussions [and] Was
Previously Convicted In An Unrelated
Case.
POINT [VII]
THE
CUMULATIVE
EFFECT
OF
THE
ISSUES
COMPLAINED OF RENDERED THE TRIAL UNFAIR.
After
reviewing
the
record
in
light
of
the
contentions
advanced on appeal, we affirm.
I.
The State developed the following proofs at trial.
The
victim, C.N.,1 lived in Bayonne with her fourteen-year-old son,
J.N.
Defendant and C.N. met in 2002 when they were in law
school
together
C.N.'s apartment.
and,
in
December
2005,
defendant
moved
into
J.N. described the relationship between C.N.
and defendant as "crazy," explaining that they used to "fight
every day."
In January 2007, defendant moved to Texas, but he
returned to the apartment in late March 2007.
On the morning of April 4, 2007, C.N. did not wake J.N. for
school as she usually did.
He got dressed and went to C.N.'s
bedroom
The
to
say
goodbye.
door
was
closed
and,
as
he
approached, J.N. testified that defendant stepped in front of
the door, and prevented him from going inside.
J.N. then left
1
We use initials to identify the victim and her family members
in order to protect their privacy.
6
A-4663-11T1
the apartment.
He did not hear any sounds coming from inside
C.N.'s bedroom that morning, nor had he heard anything unusual
the previous night.
J.N. stated he usually stayed in his room
in the evening playing videogames and watching television.
When J.N. returned home from school at approximately 4:00
p.m., defendant was in the apartment, but C.N. was not there.
J.N. asked defendant about C.N., and defendant told the child he
had not seen the victim.
J.N. noticed that a white blanket and
some of his mother's personal "accessories" were missing from
C.N.'s bedroom.
J.N. testified that defendant gave him some money to buy
food at a take-out restaurant and then followed the child there
on a bicycle.
When they returned home, defendant stated he had
to leave because his aunt was "sick[,] . . . in the hospital,
tied to a machine, she's getting ready to die[.]"
took "all his stuff with him" when he left.
Defendant
J.N. testified
defendant used to borrow a Silver Kia from someone he identified
as "his aunt" and, after defendant left that night, he never saw
defendant or the car again.
Defendant's friend, C.V., testified that defendant borrowed
her 2001 Kia on April 3, 2007 and, when he returned it in the
early evening on April 5, it had two flat tires.
7
Defendant
A-4663-11T1
stayed at C.V.'s home until April 9, when she drove him to a
train station.
J.N. notified his school of his mother's disappearance and,
two or three days later, he went to his grandmother's house in
New York City to tell her C.N. was missing.
On the morning of April 7, 2007, a New York City Department
of Transportation employee found the body of a woman inside a
black duffel bag along the Henry Hudson Parkway in New York,
about twenty-five miles from Bayonne.
The employee testified he
did not see the bag when he cleaned the area the previous day.
New York City police officers retrieved the body and began an
investigation.
On
April
performed
an
8,
2007,
autopsy
of
the
New
the
York
body.
City
medical
examiner
The
medical
examiner
testified the body was found in a large, expandable black bag
that
had
the
brand
name
"G&S"
on
it.
The
body
was
fully
clothed, and wrapped in a "white bed sheet" and black plastic.
The medical examiner found two rings and a bracelet on the body.
The
medical
examiner
observed
multiple
blunt-impact
injuries on the body, including abrasions and contusions of the
neck, torso, and extremities.
The medical examiner opined that
the cause of death was homicide caused by "compression of the
8
A-4663-11T1
neck," and that the woman had been killed on or before April 4,
2007.2
C.N.'s friend, C.D.K., testified that, on April 9, 2017,
she recognized C.N.'s jewelry on a television report about a
"[w]oman found on the Henry Hudson," and she contacted C.N.'s
family.
Shortly after 5:00 p.m. that same day, Bayonne Police
Officer Ponik went to C.N.'s apartment to investigate a missing
persons
report.
thereafter,
C.N.'s
The
officer
brother
met
Cody,3
with
C.N.'s
J.N.
and,
parents,
arrived at the home with other family members.
and
shortly
C.D.K.
Officer Ponik
remained at the apartment for approximately six hours while he
collected information from the group.
The officer also obtained
information from other agencies and waited for a response from
the Division of Youth and Family Services regarding custody of
J.N.
While Officer Ponik was in the apartment, Cody attempted to
call C.N. several times on her cell phone.
five
minutes
after
Cody
defendant called Cody.
last
attempted
At 11:00 p.m., about
to
call
his
sister,
Officer Ponik asked Cody to put the call
2
The medical examiner explained that the date of death listed on
the death certificate was April 7, 2007, because that was the
day the body was discovered.
3
Because C.N. and her brother have the same initials, we use a
fictitious name to refer to C.N.'s brother.
9
A-4663-11T1
on speaker phone, and Cody agreed.
Defendant initially denied
knowing anything about C.N.'s whereabouts, but later admitted
seeing her on April 2, 2007.
Then, "out of nowhere," defendant
told Cody that C.N. "went on vacation" and that he bought her a
"black folding type suitcase" to use.
Defendant told Cody he
was staying in Rockland County, New York, while visiting a sick
aunt
in
Long
Island.
Defendant
refused
to
give
Cody
any
information on how to reach him, and then ended the call.
Five or ten minutes later, defendant called Cody again to
say he would return to Bayonne the next day.
He admitted having
C.N.'s cell phone, explaining that she gave it to him.
When
Cody asked defendant to assist the family in locating C.N.,
defendant
became
uncooperative
and
ended
the
conversation.
Defendant did not return to Bayonne.
The next day, April 10, 2007, the New York City police sent
a sketch of the woman found in the black bag and photographs of
her clothing and jewelry to the Bayonne police, who recognized
the items as belonging to C.N.
Later that day, C.N.'s father
went to the medical examiner's officer and identified the woman
in the black bag as C.N.
On April 10, the police also obtained
and executed a search warrant for C.N.'s apartment.
The police
did not find anything of evidentiary value in the apartment.
10
A-4663-11T1
On April 10, 2007, Bayonne detectives attempted to locate a
store that sold luggage similar to the bag in which C.N.'s body
was found.
In a store about seven blocks from C.N.'s apartment,
the police spoke to a store owner, who stated she had ordered
five G&S collapsible bags and sold one of them.
The detectives
purchased one of the bags and took it back to headquarters.
The next day, the detectives returned to the store and
interviewed the owner.
She stated that, on April 4, 2007, a man
entered the store and walked down an aisle.
associates
spoke
to
the
man
and
One of the sales
brought
register, where the owner was working.
him
to
the
cash
The owner stated she
dealt with the man "face to face" and that the lighting in the
store was bright.
suitcase.
The man purchased a black, firm-sided G&S
The man told the owner that he and his wife were
going to go on a cruise to the Bahamas, and he paid cash for the
bag.
About an hour later, the man returned with the bag and
asked
one.'"
for
a
refund,
explaining
that
his
"'wife
already
The man then used cash to purchase a "metal fold-up
luggage carrier[]."
The man later returned a third time and
picked out a black, expandable G&S suitcase.
The owner stated
that this bag was "totally flexible and expandable.
move.
has
It's not solid.
It's not rigid."
11
It can
The man used cash to
A-4663-11T1
buy the bag.
After the interview, the detectives took the first
bag the man purchased back to headquarters.
The detectives also brought the store owner to the police
station, where she was placed in an interview room.
Sergeant
Opel, who had not been involved in the investigation up to that
point,
told
the
store
owner
he
was
going
to
show
her
some
photographs and he read her instructions concerning the photo
identification that had been prepared by the Attorney General's
Office.
He told the owner she was not obligated to identify
anyone, that the suspect's picture might not be included in the
lineup, and that she could have all the time she needed to view
the photographs.
In response to defendant's questions on cross-
examination at a Wade4 hearing, Sergeant Opel stated he did not
"record this procedure on any electronic device" and he did not
ask the store owner to sign the instructions after he read them
to her.
other
Defendant did not ask the sergeant whether he or any
officer
prepared
a
written
report
concerning
the
identification procedure.
One-by-one,
Sergeant
Opel
showed
six
photographs
to
the
store owner and asked her if she could identify the person who
purchased
the
suitcases.
The
store
owner
identified
a
4
United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed.
2d 1149 (1967).
12
A-4663-11T1
photograph of defendant as the man who purchased the bags, and
she also identified him at trial.
The State presented the testimony of a DNA expert, who
opined that C.N.'s DNA was found on the top inner rim of the
first bag defendant purchased from, and then returned to, the
Bayonne store.
The expert did not test the inside of the bag in
which C.N.'s body was found, and did not find C.N.'s DNA on the
outside of that bag.
Approximately eighteen months later, on October 14, 2008, a
golfer contacted the New York City police to report that he had
recognized
Township,
a
caddy
working
Pennsylvania
as
at
a
someone
country
wanted
questioning in a New York homicide.
club
by
in
the
Whitemarsh
police
for
The golfer had previously
worked at a country club in Bayonne.
The New York City police
sent
name
a
flyer
containing
defendant's
and
photograph
to
Detective Cubbin of the Whitemarsh Township police department.
Detective Cubbin e-mailed the flyer to a manager at the
country club, who told him the photograph resembled one of the
caddies, but that the caddy's name was Keith Davis, not Shawn
Southerland.
Detective Cubbin went to the country club and
spoke to the person identified as Keith Davis.
The man denied
having any identification, but the detective observed a wallet
in the man's back pocket.
The man told him the wallet was
13
A-4663-11T1
empty.
Detective Cubbin asked the man to take the wallet out
and show him "it's empty."
When the man did so, the detective
saw "a Texas ID . . . [a]nd it says Shawn Southerland on it."
Detective Cubbin stated, "[a]t that point, Southerland says to
me, 'I knew this day was coming.'"
Defendant also told the
detective, "'I left New York and this is my new identity.'"
Defendant
called
several
witnesses
testified on behalf of the State.
who
had
previously
He did not testify on his own
behalf.
At the conclusion of the trial, Judge Schultz rendered a
thorough oral opinion in which he found, beyond a reasonable
doubt, that defendant purposely caused C.N.'s death and that he
concealed evidence of the crime by placing her body in the black
bag, "and depositing it in a place remote from the scene of the
crime" with the purpose "to hinder his apprehension, prosecution
and conviction for the homicide of" C.N.
II.
In Point I, defendant argues that his appointed standby
counsel was "unconstitutionally ineffective."
Defendant asserts
the standby counsel failed to communicate with him, and was
unable to agree with him "on the proper strategy as to the
defense of the State's allegations."
14
Defendant also argues the
A-4663-11T1
standby
counsel
expressed
"a
readily
apparent
and
open
hostility" toward him.
We decline to consider defendant's argument.
of
ineffective
assistance
of
counsel
are
"Contentions
more
effectively
addressed through petitions for post-conviction relief, at which
point an appropriate record may be developed."
State v. Rambo,
401 N.J. Super. 506, 525 (App. Div.) (citing State v. Preciose,
129 N.J. 451, 460 (1992)), certif. denied, 197 N.J. 258 (2008).
Thus, defendant's claim of ineffective assistance of counsel may
abide
a
properly
filed
petition
for
post-conviction
relief
(PCR).
III.
In Point II, defendant argues that the police failed to
comply with the "condition to the admissibility of out-of-court
identifications, that the police record, to the extent feasible,
the
dialogue
between
identification procedure."
(2006).
of
and
police
during
an
State v. Delgado, 188 N.J. 48, 51
He bases his argument on part of his cross-examination
Sergeant
sergeant
witnesses
Opel
whether
at
he
the
Wade
recorded
hearing,
his
where
interview
he
with
asked
the
the
luggage
store owner "on any electronic device," and whether he asked the
owner to sign the identification instructions he read to her.
Sergeant
Opel
stated
he
did
not
15
electronically
record
the
A-4663-11T1
interview and did not ask the owner to sign the instructions.
Although defendant did not ask the sergeant if he prepared a
report
setting
forth
the
details
of
the
interview,
he
now
asserts that "the State's failure to record necessary details of
the photographic identification procedure was contrary to State
v. Delgado” and that his motion to suppress the identification
should have been granted.
In
Delgado,
officers
had
a
the
duty
identification
We disagree.
Court
"to
addressed
record
procedures
the
that
whether
law
details
of
result
enforcement
out-of-court
in
positive
identifications and non-identifications as well as near misses
and hits."
"the
Id. at 58.
single
country,"
under
greatest
Recognizing that misidentification was
cause
of
wrongful
convictions
in
this
id. at 60, the Court invoked its supervisory powers
Article
VI,
Section
2,
Paragraph
3
of
the
New
Jersey
Constitution to require a written record as a condition to the
admissibility of out-of-court identifications.
Id. at 63.
It,
therefore, directed law enforcement officers to make "a written
record
detailing
including
dialogue
results."
the
the
place
between
Ibid.
the
out-of-court
where
the
witness
identification
procedure
and
the
was
procedure,
conducted,
interlocutor,
and
the
the
The Court explained that a detailed summary of
16
A-4663-11T1
the identification should be prepared whenever feasible and that
electronic recordation was advisable, but not mandated.
Ibid.
The Court "refer[red] to the Criminal Practice Committee
the
preparation
incorporates
of
the
a
rule
recording
identifications."
Id. at 64.
for
our
requirements
consideration
for
that
out-of-court
On September 4, 2012, the Supreme
Court adopted Rule 3:11, entitled "Record of an Out-of-Court
Identification Procedure."
In pertinent part, the Rule states
that "[a]n out-of-court identification resulting from a photo
array . . . conducted by a law enforcement officer shall not be
admissible unless a record of the identification procedure is
made."
R. 3:11(a).
"If the record that is prepared is lacking
in important details as to what occurred at the out-of-court
identification procedure," the Rule provides that "the court may
. . . declare the identification admissible, redact portions of
the identification testimony," or "fashion an appropriate jury
charge
to
be
identification."
used
in
evaluating
the
reliability
of
the
R. 3:11(d).
Defendant's
only
complaint
about
the
identification
procedure at the Wade hearing was that Sergeant Opel did not
electronically record his interview with the store owner, or
require her to sign the identification instructions after he
read them to her.
However, under Delgado, supra, the police
17
A-4663-11T1
were not required to electronically record the interview or have
the
witness
sign
the
identification
instructions.
Thus,
we
discern no violation of Delgado under the facts of this case.
For the first time on appeal, defendant contends the State
failed to provide a written report detailing the out-of-court
identification procedure and, therefore, his conviction must now
be reversed and the matter remanded for a new trial.
Again, we
disagree.
Although
under
the
plain
error
rule
we
will
consider
allegations of error not brought to the trial court's attention
that have a clear capacity to produce an unjust result, see Rule
2:10-2; State v. Macon, 57 N.J. 325, 337-39 (1971), we generally
decline to consider issues that were not presented at trial.
Nieder v. Royal Indem. Ins. Co. 62 N.J. 229, 234 (1973).
As the
Supreme Court has cogently explained:
Appellate review is not limitless.
The
jurisdiction of appellate courts rightly is
bounded
by
the
proofs
and
objections
critically explored on the record before the
trial court by the parties themselves.
Although "[o]ur rules do not perpetuate mere
ritual[,]" we have insisted that in opposing
the admission of evidence, a litigant "must
make known his position to the end that the
trial court may consciously rule upon it."
State v. Abbott, 36 N.J. 63, 76 (1961).
This is so because "[t]he important fact is
that the trial court was alerted to the
basic problem[.]" Id. at 68. In short, the
points
of
divergence
developed
in
the
18
A-4663-11T1
proceedings before a trial court define the
metes and bounds of appellate review.
[State v. Robinson, 200 N.J. 1, 19 (2009).]
As
noted,
failed
to
procedure
defendant's
produce
was
a
not
a
present
written
basis
contention
record
for
of
his
that
the
the
State
identification
motion
to
suppress.
Therefore, we need not review it under the circumstances of this
case.
However,
conclude
it
sergeant
did
even
lacks
not
if
we
merit.
consider
After
electronically
defendant's
defendant
record
contention,
argued
the
we
that
the
interview,
the
prosecutor referred to a written statement by the store owner,
which
detailed
that
"a
photo
identification
lineup
was
administered to [her] by Sergeant . . . Opel who acted as a
blind administrator."
"pointed
out
and
The statement indicated that the owner
positively
photograph number 4."
identified
the
individual
in
According to the statement, the owner
told Sergeant Opel that the man in the photograph was "the same
gentleman only he did not have facial hair when he was in the
store."
Thus,
contrary
to
defendant's
contention,
the
State
did
prepare a written statement addressing the Delgado requirements.
Defendant knew where the identification procedure was conducted
and the statement clearly records the witness's response upon
19
A-4663-11T1
identifying defendant as the person in photograph number four of
the array.
In addition, the instructions Sergeant Opel read the
store owner were provided to defendant and, therefore, he was
aware what the sergeant told the witness during the interview.
The
State
also
comprising
Delgado
the
gave
defendant
array.
requirements
Thus,
were
limiting
all
the
met
the
and
store
six
of
record
the
photographs
reflects
there
was
owner's
no
that
the
basis
for
suppressing
or
identification
of
defendant.
Therefore, we reject defendant's contention on this
point.
IV.
In Points III, IV, and V, defendant argues the judge erred
by granting the State's motion to admit the statements he made
to
Cody
during
their
telephone
conversation
into
evidence.
Defendant asserts that Officer Ponik violated the New Jersey
Wiretapping and Electronic Surveillance Act, N.J.S.A. 2A:156-1
to -34 (the Wiretap Act), by listening to the telephone call,
and
that
the
officer's
constituted
an
prosecutor's
subsequent
lengthy
unlawful
presence
search.
use
of
the
in
C.N.'s
apartment
Defendant
contends
the
statements
"tainted"
the
grand jury proceedings and the trial and, therefore, he should
be granted a new trial.
We disagree.
We review a trial court's evidentiary determinations for an
20
A-4663-11T1
abuse of discretion.
State v. Buda, 195 N.J. 278, 294 (2008).
Under this standard, an appellate court affords "considerable
deference to a trial court's findings based on the testimony of
witnesses."
State v. Buckley, 216 N.J. 249, 260 (2013).
An
appellate court, however, owes no special deference to a trial
court's interpretation of the law.
Id. at 260-261.
Officer Ponik went to C.N.'s apartment at the request of
her family, who wished to file a missing persons report.
officer
members,
spent
the
next
obtaining
six
hours
information
interviewing
from
other
the
The
family
agencies,
and
attempting to determine who would take custody of J.N. in his
mother's
absence.
During
the
evening,
C.N.'s
brother
repeatedly attempted to call C.N. on her cell phone.
Cody
About five
minutes after Cody's last call, defendant called him at the
apartment and Officer Ponik asked that Cody put the call on the
speaker phone.
Cody agreed to do so and the officer listened to
that call, as well as the second call defendant made to Cody a
few minutes later.
In relevant part, N.J.S.A. 2A:156A-3(a) provides that any
person who "[p]urposely intercepts, endeavors to intercept, or
procures any other person to intercept or endeavor to intercept
any wire, electronic or oral communication" is guilty of a crime
of the third degree.
The Wiretap Act defines "intercept" as
21
A-4663-11T1
"the aural or other acquisition of the contents of any wire,
electronic
or
electronic,
mechanical,
2(c).
oral
communication
or
other
through
the
device."
use
of
N.J.S.A.
any
2A:156A-
An "electronic, mechanical or other device" means
any device . . . that can be used to
intercept
a
wire,
electronic
or
oral
communication other than . . . [a]ny
telephone . . . instrument . . . furnished
to the subscriber or user by a provider of
wire or electronic communication service in
the ordinary course of its business and
being used by the subscriber or user in the
ordinary course of its business.
[N.J.S.A. 2A:156A-2(d)(1).]
Thus,
an
contents
"aggrieved
of
an
person
.
.
intercepted
.
may
wire,
move
to
suppress
electronic
or
the
oral
communication . . . on the grounds that . . . the communication
was unlawfully intercepted."
The
Wiretap
Act,
N.J.S.A. 2A:156A-21(a).
however,
provides
an
exception
for
telephone conversations intercepted with the consent of either
party to the conversation.
D'Onofrio v. D'Onofrio, 344 N.J.
Super. 147, 154 (App. Div. 2001); State v. Lane, 279 N.J. Super.
209, 218 (App. Div.), certif. denied, 141 N.J. 94 (1995).
Under
the "consent exception" provision, it is not unlawful for:
A person not acting under color of law to
intercept
a
wire,
electronic
or
oral
communication, where such person is a party
to the communication or one of the parties
to the communication has given prior consent
to
such
interception
unless
such
22
A-4663-11T1
communication is intercepted or used for the
purpose
of
committing
any
criminal
or
tortious
act
in
violation
of
the
Constitution or laws of the United States or
of this State or for the purpose of
committing any other injurious act.
[N.J.S.A. 2A:156A-4(d).]
The
Wiretap
Act
protects
the
privacy
individuals in their telephone conversations.
interests
of
State v. Worthy,
141 N.J. 368, 379 (1995); Lane, supra, 279 N.J. Super. at 219.
To safeguard an individual's right to privacy, the Wiretap Act
must be strictly construed.
State v. Ates, 217 N.J. 253, 268
(2014); Worthy, supra, 141 N.J. at 379-80; State v. Catania, 85
N.J. 418, 437 (1981).
The remedy for an illegal interception is
the suppression of evidence.
Worthy, supra, 141 N.J. at 387.
Applying these standards, it is clear that Officer Ponik
did not violate the Wiretap Act by listening to the two calls.
The officer did not "intercept" the calls with an "electronic,
mechanical or other device."
He simply listened to the speaker
phone as Cody spoke with defendant.
consent
to
conversations
Officer
with
Ponik
to
defendant.
Moreover, Cody gave his
listen
Thus,
we
to
his
reject
telephone
defendant's
contention that this evidence should have been suppressed under
the Wiretap Act.
Defendant's
argument
that
Officer
Ponik
conducted
illegal search of C.N.'s apartment also lacks merit.
23
an
Indeed, no
A-4663-11T1
search occurred during the evening of April 9, 2007.
Officer
Ponik went to C.N.'s apartment to meet with J.N., who lived
there,
and
his
family
to
gather
information
about
C.N.'s
disappearance, and to make arrangements for J.N.'s care.
By
that time, defendant had left the apartment with "all his stuff"
and he never returned.
apartment
that
Thus, Officer Ponik's presence in the
evening
did
constitutional right to privacy.
admitted
the
statements
not
violate
defendant's
Therefore, the judge properly
into
evidence
and
the
prosecutor
properly referred to them before the grand jury and at trial.
V.
Defendant next argues, in Point V, that the judge erred in
denying his motions to dismiss the indictment and for a judgment
of acquittal on the ground that New Jersey lacked "territorial
jurisdiction" to consider the matter because there was allegedly
no
evidence
that
the
murder
occurred
in
this
State.
We
disagree.
It is well established that "[t]he State can only prosecute
crimes that occur within its territorial borders."
217
N.J.
(2006));
at
see
268
also
(citing
State
N.J.S.A.
v.
Denofa,
2C:1-3(a)(1)
187
("[A]
Ates, supra,
N.J.
24,
36
person
may
be
convicted under the laws of this State of an offense committed
by his own conduct . . . if . . . [e]ither the conduct which is
24
A-4663-11T1
an element of the offense or the result which is such an element
occurs within this State.").
Territorial jurisdiction is an
element of every criminal offense.
14(h).
Id. at 38; N.J.S.A. 2C:1-
"As such, when in dispute, territorial jurisdiction,
like every other element, must be 'proved beyond a reasonable
doubt.'"
Denofa, supra, 187 N.J. at 38 (quoting N.J.S.A. 2C:1-
13(a)).
Applying this standard, we agree with the trial judge that
there
was
reasonable
strong
doubt
circumstantial
that
with
the
C.N.
evidence
murder
and
J.N.
occurred
in
proving
in
C.N.'s
beyond
New
a
Jersey.
Defendant
lived
apartment
in
Bayonne.
On the morning of April 4, 2007, defendant prevented
J.N. from entering his mother's room to say goodbye as he was
leaving for school.
The medical examiner testified the murder
occurred on or before April 4.
Later that day, defendant went to the Bayonne store three
times to purchase bags and a bag carrier.
C.N.'s DNA was found
inside the non-expandable bag defendant purchased from, and then
returned to, the Bayonne store.
C.N.'s body was found in the
expandable bag defendant purchased at the Bayonne store.
The
medical examiner testified C.N.'s body was wrapped in a white
sheet, and J.N. stated that a white blanket was missing from his
mother's
room
after
defendant
left.
25
Thus,
there
was
ample
A-4663-11T1
evidence in the record to support the judge's conclusion that
the murder occurred in C.N.'s apartment sometime between the
late evening of April 3, and the time J.N. woke up on the
morning of April 4, 2007.
Defendant argues that, because the police found nothing of
evidentiary value during the search of C.N.'s apartment, this
proved
the
testified
abruptly
murder
that
left
was
not
defendant
the
home
committed
removed
on
April
"accessories" were also missing.
there.
"all
4,
his
and
However,
stuff"
that
J.N.
when
his
he
mother's
Thus, there was evidence in
the record that explained the lack of physical evidence in the
apartment.
Defendant also argues that C.N.'s death certificate listed
her
date
of
death
as
April
7,
rather
than
April
4,
2007.
However, the medical examiner explained that the date on the
death certificate represented the date the police found C.N.'s
body on the side of the road, rather than the date of her
murder.
Therefore, we reject defendant's contention that the
State lacked jurisdiction to prosecute him in this case.
VI.
In
Point
VI,
defendant
contends
for
the
first
time
on
appeal that the judge erred in failing to recuse himself sua
sponte
from
presiding
at
the
trial.
26
Defendant
asserts
the
A-4663-11T1
judge's knowledge of disputed evidentiary issues, the nature of
the parties' plea discussions, and defendant's prior conviction
prejudiced his right to a fair trial.
This argument is clearly without merit.
R. 2:11-3(e)(2).
Suffice it to say that, prior to granting defendant's motion to
waive
his
right
to
a
jury
trial,
Judge
Schultz
carefully
questioned defendant about his decision to proceed with a bench
trial, and cautioned him about the risks.
The judge advised
defendant that he had a constitutional right to a jury trial,
that most defendants preferred juries over judges, and that most
judges,
including
himself,
seeking bench trials.
trial,
the
State
had
tried
to
dissuade
defendants
from
Judge Schultz explained that, in a jury
to
convince
twelve
people
beyond
a
reasonable doubt, whereas in a bench trial, the State only had
to convince one.
He further explained that jurors talked and
deliberated with each other, while in a bench trial the court
would reach a decision alone.
Judge
Schultz
advised
defendant
that
if
he
chose
to
testify, the judge would know whether he had any convictions
involving acts of violence, even though he would sanitize the
convictions
if
defendant
opted
for
a
jury
trial.
Even
if
defendant did not testify, the judge said he would be aware of
defendant's prior convictions.
However, the judge stated he
27
A-4663-11T1
would
not
be
prejudiced
by
this
information,
because
"I
understand the law and I would apply it."
The judge also cautioned defendant that he might hear other
things about him that a jury might not hear, such as information
about plea discussions.
Defendant said he understood what the
court meant, and agreed to take some time to think about it.
However, defendant later renewed his request to waive his
right to a jury trial.
He explained that he preferred a judge
to decide his case and that he had reviewed his decision with
his standby counsel.
Under these circumstances, the judge found
that defendant voluntarily waived his right to a jury trial.
On appeal, defendant does not identify a single instance of
actual
bias
or
prejudice
arising
from
involvement in presiding over this case.
firmly
demonstrates
that
defendant
made
Judge
Schultz's
Instead, the record
a
fully
informed
decision to proceed with a bench trial before Judge Schultz.
We
therefore discern no error, much less plain error, in the judge
continuing to handle this matter after he granted defendant's
motion to waive his right to a jury trial.
VII.
Finally, in Point VII, defendant argues that the cumulative
prejudice of the errors he raises deprived him of a fair trial.
28
A-4663-11T1
Having
rejected
defendant's
argument
that
any
error
occurred
during his trial, we also reject his cumulative error argument.
Affirmed.
29
A-4663-11T1