STATE OF NEW JERSEY v. MICHELLE J. HURLEY (16-05-0665, HUDSON COUNTY AND STATEWIDE)

• Court: New Jersey Superior Court Appellate Division
• Decided: March 15, 2022
• Docket: A-4707-18
• Status: Unpublished

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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 internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-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).

A-4707-18 2 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

A-4707-18 3 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

A-4707-18 4 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

A-4707-18 5 (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. A-4707-18 6 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.

A-4707-18 7 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 8 "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 9 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 10 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 11 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 13 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

A-4707-18 14 (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 15 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 16 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.

A-4707-18 17 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 18 Affirmed.

A-4707-18 19