NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-4193-14T2
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
JOHN F. TORNESE a/k/a JOHN TORNESE, JR.,
Defendant-Appellant.
_______________________________
Submitted October 13, 2016 – Decided November 20, 2017
Before Judges Simonelli and Gooden Brown.
On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment Nos. 12-06-1334, 12-10-1546, and 12-12-1137.
Joseph E. Krakora, Public Defender, attorney for appellant (David A. Gies, Designated Counsel, on the briefs).
Diane M. Ruberton, Acting Atlantic County Prosecutor, attorney for respondent (Brett Yore, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).
The opinion of the court was delivered by
GOODEN BROWN, J.A.D. Defendant John F. Tornese was charged in Atlantic County
Indictment No. 12-06-1334 with second-degree witness tampering,
N.J.S.A. 2C:28-5(a) (count one), and five counts of third-degree
terroristic threats, N.J.S.A. 2C:12-3(a) (counts two, three, four,
five, and six). Defendant was also charged in two related single
count indictments from different jurisdictions, Bergen County
Indictment No. 12-10-1546 and Mercer County Indictment No. 12-12-
1137, each charging defendant with third-degree terroristic
threats, N.J.S.A. 2C:12-3(b). The charges stemmed from defendant
threatening Mark Singer,1 a business associate from whom he had
purchased a pay phone business, and John Corigliano, another
business associate who had purchased pay phone routes from
defendant. The charges also related to defendant threatening
Singer's two attorneys and an employee of one of the attorneys.
On defendant's motion, the indictments were joined for trial,
pursuant to Rule 3:15-1(a). Following a jury trial, defendant was
convicted on counts one, two and four of Indictment No. 12-06-1334
pertaining to Singer. Defendant was also convicted of the lesser-
included offense of harassment, N.J.S.A. 2C:33-4, a petty
disorderly persons offense, on counts three, five and six of
Indictment No. 12-06-1334, as well as Indictment Nos. 12-10-1546
1 Singer's name alternatively appears as Marc and Mark Singer at various places in the record.
2 A-4193-14T2 and 12-12-1137 pertaining to Corigliano, Singer's two attorneys,
and the employee of one of the attorneys.
Defendant appeals from his March 10, 2015 judgment of
conviction arguing:
POINT ONE
THE PROSECUTOR'S COMMENTS DURING SUMMATION TO WHICH THE DEFENDANT OBJECTED WERE CLEARLY AND UNMISTAKABLY IMPROPER WHERE THE REMARKS SUBSTANTIALLY PREJUDICED THE DEFENDANT'S FUNDAMENTAL RIGHT TO HAVE A JURY FAIRLY EVALUATE HIS GUILT BASED ON ONLY THE EVIDENCE ADMITTED.
POINT TWO
THE DEFENDANT‘S CONVICTION OF WITNESS TAMPERING SHOULD BE SET ASIDE WHERE THE STATE PRESENTED NO EVIDENCE THAT THE DEFENDANT WAS ARRESTED OR SERVED A COMPLAINT FOR CONDUCT AGAINST THE ALLEGED VICTIM PRIOR TO MARCH 21, 2012.
After considering the arguments presented, in light of the record
and applicable law, we affirm.
I.
We recite the facts, taken from the record of the five-day
jury trial, during which the State produced sixteen witnesses,
eight of whom were law enforcement personnel. Five witnesses
testified for the defense, including defendant. Defendant, an
entrepreneur, was involved in civil litigation with Singer and
Corigliano related to contract disputes in their separate business
3 A-4193-14T2 dealings involving pay phones. Around 2008, defendant sued Singer
and his corporation in Pennsylvania over Singer's sale of the pay
phone business to defendant. Beginning in 2009, Charles Indyg
represented Singer's corporation in the lawsuit. Defendant, who
was also represented by counsel in the litigation, prevailed in
the lawsuit. However, defendant was unable to collect on his
judgment because Singer's corporation filed for bankruptcy.
Darren Baldo represented Singer's corporation in the bankruptcy
proceeding which concluded when the bankruptcy petition was
dismissed in October 2011.
In 2010, defendant also sued Corigliano and his corporation
in Pennsylvania for withholding payment on their pay phone
contract. However, an arbitration clause in the contract prevented
defendant from litigating the dispute in court. Corigliano
ultimately obtained a favorable arbitration decision in 2013.
However, defendant obtained a default judgment against Corigliano
in a defamation lawsuit based on Corigliano informing the
arbitrator about alleged threats defendant had made to Corigliano
and others.
Taking matters into his own hands, through text messages and
phone calls, defendant threatened individuals connected with the
litigation, specifically Singer, Corigliano, Singer's attorneys,
Indyg and Baldo, and an employee of Indyg, Howard Beaumont.
4 A-4193-14T2 Defendant also threatened Singer to prevent him from testifying
against him in connection with a criminal complaint Singer filed
against defendant when the threats started. Using two prepaid
phones, defendant made the threats on September 6, 2011 and March
21, 2012. The numbers were traced back to defendant from phone
records showing that the same numbers called his mother and the
law firms that represented him in the litigation on the same dates.
In addition, some of the witnesses recognized defendant's voice
and, during some of the calls, defendant actually identified
himself.
As to the specific threats, Singer, who was previously
convicted of tax evasion in 1992, testified that on September 6,
2011, he received "four or five" phone calls from defendant,
threatening Singer and his family. Singer recognized defendant's
voice from his distinctive stutter as well as from their business
dealings and the litigation. According to Singer, defendant "was
irate and upset about the ongoing litigation in the bankruptcy
court[.]" Defendant threatened to "cut[] [Singer's] brake
lines[,]" and told Singer "[he] better back off the litigation,"
or otherwise "he would kill [him.]" Because of these threats,
Singer stopped answering the phone, prompting defendant to send
Singer similar threatening text messages. Singer was disturbed
5 A-4193-14T2 and alarmed by the threats, and filed a citizen's complaint with
the Brigantine Police Department a few days later.
Singer testified further that, on March 21, 2012, he received
additional telephonic and text message threats from defendant.
Defendant told Singer not to "show up" to testify against him in
connection with the September 2011 citizen's complaint. Defendant
threatened to "burn[] down [Singer's] house," and to "beat the
crap out of [you] faggots," referring to Singer and Robert Smith,
Singer's partner of twenty-seven years. Defendant threatened to
tie up Smith and "make him watch as he cut off [Singer's] penis
and watch [Singer] bleed out[.]" Of the three text messages Singer
received from defendant on that date, the first stated "Singer,
you're a fucking . . . faggot, you're fucking dead." The second
stated "I should kill you just because you're gay." The third
stated "I'm going to kill you, your boyfriend and your lawyer, you
fucking homo." Singer testified he felt
"intimidated[,]""terrified[,]" and "scared to death." He believed
that the threats could be carried out because "[y]ou see things
in the news all the time." As a result, he went to the police
station a second time and filed another citizen's complaint.
In addition to representing Singer in legal matters, Indyg
was a longtime friend of Singer and his business partner in
unrelated business ventures. Indyg testified that on March 21,
6 A-4193-14T2 2012, at about 11:30 a.m., he received a text message stating
"that [he] was going to be dead" and threatened "to blow up [his]
office," "[his] house," and "[his] red pick[-]up truck[.]" Later
in the day, at around 1:00 p.m., Indyg received a phone call from
the same phone number reiterating the threats and "threatening to
kill [him]," "[his] [ten]-year-old daughter," and "[his] wife[.]"
Although the caller did not identify himself, Indyg recognized the
voice as defendant's from having cross-examined defendant for over
two hours in the litigation of the contract dispute. Indyg was
alarmed by the threats, and "felt like [he] was in danger."
After receiving the text message and phone call, Indyg
returned to his office. His assistant, Beaumont, informed him
that he had received a series of calls that morning that were
essentially "hang-ups." According to Beaumont, the caller
eventually spoke during one of the calls, identified himself as
John Tornese, and indicated that he was looking for Indyg.
Beaumont stated the caller yelled on the phone, using "a bunch of
expletives[.]" The caller warned Beaumont about being "involved"
with Singer and Indyg, and threatened to "kill" Beaumont, "blow
up" Indyg's red truck, and "set fire to the office." The caller
also told Beaumont to allow his call to go through to voicemail
so that he could leave a message for Indyg. Accompanied by
Beaumont, Indyg went to the Egg Harbor Township Police Department
7 A-4193-14T2 and signed a citizen's complaint against defendant. Although
Indyg showed the police officer the text message from defendant
on his phone while filing the complaint, Indyg accidentally lost
the text by the time of trial.
Baldo testified that, initially, in September 2011, an
individual identifying himself as defendant called his office and
threatened him to stop the bankruptcy litigation involving Singer.
He told Baldo to "fuck off" or he would "kill [him]," and "burn
[his] office down." Baldo told defendant not to threaten him and
to have his (defendant's) attorney call his office to talk about
the case. Then, Baldo hung up the phone. On the morning of March
21, 2012, defendant called Baldo's office again and made even
worse threats. According to Baldo, defendant threatened "to tie
[him] up[,]" "rape [his] wife," and "stick a knife in her ass
while [he] watched." Baldo was extremely alarmed by the threats,
particularly those directed at his wife.
Laura Crawford, Baldo's paralegal, had transferred the call
to Baldo because the caller claimed to be referred by a friend.
After she transferred the call, Baldo put the phone on speaker and
Crawford overheard the caller identify himself as defendant and
"yell[] threats" at Baldo. Accompanied by Crawford, Baldo went
to the West Windsor Police Department to file a citizen's
complaint. While en route to the police station, Baldo received
8 A-4193-14T2 additional threatening calls from defendant on his cell phone and,
while at the police station, Baldo received similar threatening
text messages.
Corigliano testified that at about 11:00 a.m., on September
6, 2011, he received a phone call threatening his life. Although
the caller stated he was "calling for [defendant]," as the
conversation continued, Corigliano recognized defendant's voice
from his distinctive stutter, particularly with "the word you,
you, you, you, you." Defendant threatened "to kill" Corigliano
if he did not "pay him right away[.]" Shortly thereafter,
Corigliano received a text message with a similar threat. Alarmed
by the threats, Corigliano filed a report with the Fort Lee Police
Department. The officer taking the report indicated that the text
message stated "you mess with the wrong fucker, you're going to
get it."
Corigliano testified further that at about 11:30 a.m., on
March 21, 2012, he received another threatening phone call from a
telephone number with the same area code, but a different number
than the September 6, 2011 call. The caller identified himself
as John Tornese, and Corigliano recognized the voice as
defendant's. About forty-five minutes later, he received a similar
threat via text message. About an hour later, while he was having
lunch with his friend, Steve Tellini, he received a phone call on
9 A-4193-14T2 his cell phone from the same number as the earlier call.
Corigliano asked Tellini to answer the phone for him so that he
would have a witness. Tellini complied and heard a man screaming
obscenities and threats. Specifically, the caller threatened that
he was going to burn down Corigliano's house. Tellini drove
Corigliano to the Fort Lee Police Department to file a citizen's
complaint. The officer taking the report recorded the text message
as stating "I'm going to kill you."
Defendant testified and acknowledged that "[he] stutter[ed]."
However, defendant denied the allegations and any connection to
the phone numbers in question. Defendant claimed that he became
aware of the allegations in September 2011, when he received the
criminal complaint in the mail and consulted his attorney.
According to defendant, when he went to court to answer the
complaint, Baldo, Singer and Indyg "tried to bully [him]" to get
him to "drop all [his] civil charges" and threatened him with
"jail" if he did not. Two character witnesses testified on
defendant's behalf about his reputation for peacefulness and
honesty in the community.
Defendant's motion for a judgment of acquittal, pursuant to
Rule 3:18-1, made at the close of the State's case, was denied,
as was defendant's motion for a new trial, pursuant to Rule 3:20-
1, made after the verdict was rendered. On February 20, 2015,
10 A-4193-14T2 defendant was sentenced in the third-degree range, N.J.S.A. 2C:44-
1(f)(2), to a three-year term of imprisonment on count one of
Indictment No. 12-06-1334. Counts two and four of Indictment No.
12-06-1334 were merged into count one, and fines and penalties
only were imposed for the harassment convictions. This appeal
followed.
II.
Defendant argues that the prosecutor's comments during
summation were improper, and "the trial court's instruction did
not cure the prejudicial nature of the prosecutor's comments."
Specifically, defendant argues the prosecutor improperly
"referenced the defendant's failure to obtain certain evidence
that would have likely exonerated him" and "attempted to bolster
the credibility of the two lawyers who testified on behalf of the
State." According to defendant, "[c]oupled with the prosecutor's
comment that the defendant's character witness had nothing to say
about the facts of the case, these two clearly and unmistakably
improper remarks were fatal to the State's prosecution of the
defendant."
While prosecutors are entitled to zealously argue the merits
of the State's case, State v. Smith, 212 N.J. 365, 403 (2012),
cert. denied, 568 U.S. 1217, 133 S. Ct. 1504, 185 L. Ed. 2d 558
(2013), they occupy a special position in our system of criminal
11 A-4193-14T2 justice. State v. Daniels, 182 N.J. 80, 96 (2004). "[A]
prosecutor must refrain from improper methods that result in a
wrongful conviction, and is obligated to use legitimate means to
bring about a just conviction." Ibid. (quoting State v. Smith,
167 N.J. 158, 177 (2001)).
In considering accusations of improper comments by the
prosecuting attorney, we examine whether defense counsel made a
timely objection, whether the prosecuting attorney withdrew the
remarks, and whether the judge acted promptly and provided
appropriate instructions. Smith, supra, 212 N.J. at 403. We are
also mindful that a prosecutor may vigorously rebut specific
arguments made by defense counsel. State v. R.B., 183 N.J. 308,
329-32 (2005).
"Our task is to consider the 'fair import' of the State's
summation in its entirety." State v. Jackson, 211 N.J. 394, 409
(2012) (quoting State v. Wakefield, 190 N.J. 397, 457 (2007),
cert. denied, 552 U.S. 1146, 128 S. Ct. 1074, 169 L. Ed. 2d 817
(2008)). "Whether particular prosecutorial efforts can be
tolerated as vigorous advocacy or must be condemned as misconduct
is often a difficult determination to make. In every instance,
the performance must be evaluated in the context of the entire
trial[.]" State v. Negron, 355 N.J. Super. 556, 576 (App. Div.
2002). Even if the prosecutor exceeds the bounds of proper
12 A-4193-14T2 conduct, "[a] finding of prosecutorial misconduct does not end a
reviewing court's inquiry because, in order to justify reversal,
the misconduct must have been 'so egregious that it deprived the
defendant of a fair trial.'" Smith, supra, 167 N.J. at 181
(quoting State v. Frost, 158 N.J. 76, 83 (1999)). Such is not the
case here.
Here, the challenged comments were responsive to defense
counsel's specific arguments during her summation. Defense
counsel zealously attacked the credibility of the two lawyers, who
testified for the State about being victimized by defendant's
threats. The prosecuting attorney responded:
I want you to focus on this, though. Why would two lawyers risk their license if this is all an attempt to get [defendant]? Why would they risk their careers, their license? What was their reward? What were they going to get out of it? That they all had motive.
Defense counsel also criticized law enforcement's handling
of citizen complaints. She referred to the testimony of Officer
Lancaster, the police officer who processed Indyg's citizen
complaint and characterized such complaints as a "he said-she said
complaint." In addition, defense counsel explicitly criticized
the investigation conducted by the prosecutor's office
investigator and explained that it was defendant's investigation,
rather than the State's, that resulted in the acquisition of the
13 A-4193-14T2 phone records which the State then "used . . . to build a case
against [defendant.]" In response, the prosecuting attorney
stated:
Now, there was also talk about police procedure in the prosecutor's office. You heard testimony from my investigator about when she was involved in the case and what had already been done. Came in much later, and for the most part, what evidence would you obtain that was not already out there by the time our office got the file. If the voice mails weren't there when Lancaster or whoever else did the investigation on the 6th of that week or whenever they did it, it's 2011, they don't exist in 2014. The phones are out there. We got the phones. This case is about paperwork, and you've been presented with a ton of it, and we all have the paperwork. Now mind you, the records, the phone records were acquired by his attorney, same attorney who could have expanded the search and got a full set of records. Why didn't they do that?
Defense counsel objected to the prosecuting attorney's
comments. She also objected to the prosecuting attorney's
"reference that the character witness didn't testify factually."
After a colloquy with counsel, the judge gave a strong curative
instruction, stating:
[L]adies and gentlemen of the jury, before I give you my charge, I'm just going to give you some additional instructions on how to consider . . . closing statements . . . . You may have heard a reference by the State regarding defense counsel obtaining phone records and could have obtained additional phone records, I remind you now and I'll remind you again in my final charge that the
14 A-4193-14T2 defense has no obligation in the case to come forward with any evidence, and to the extent that you might believe that they had some duty, you're to disregard those comments, and the defense, of course, has no obligation to produce or provide anything to the State.
You heard also a reference to the licensing of lawyers and what that may mean to somebody by way of having a motive or otherwise, that was argument by the State. You may consider it for whatever purpose you may wish to, but there's no evidence in the case about lawyers and lawyer licensing and having any bearing on the facts in this case.
And finally you heard some closing remarks regarding Mr. Ramos who testified. He was called by the defense as a character witness. He . . . was not providing factual information about the allegations in the case, and I'll give you an instruction in just a few minutes on how to treat character testimony as a special type of testimony and it has special rules and when you're considering Mr. Ramos testimony, however it was referred to by [the prosecuting attorney] or [defense counsel], you should consider his testimony only under the instructions that I'll give you in just a few minutes.
The judge reiterated the instructions in the final jury charge.
We presume the jury understood and followed those instructions.
Smith, supra, 212 N.J. at 409.
Next, defendant argues that the jury's verdict on the witness
tampering count "was against the weight of the evidence and should
be set aside." In ruling on defendant's new trial motion, the
judge rejected this argument, determining that there was no
15 A-4193-14T2 "manifest denial of justice[.]" According to the judge, the
verdict was based on "credibility" assessments and "the quantum
of evidence[,]" both of which were "jury questions." The judge
explained:
[T]he jury had the ability to assess the credibility of Marc Singer in particular, to sift through the evidence and to decide who was being forthcoming. . . . [B]ased on the testimony . . . , it does appear that Mr. Singer's testimony, while it didn't flow as chronologically or clearly as it might have done, did provide the jury with enough evidence in which to convict based on the telephone call that he received that he believed that he was being threatened to back off from litigation and not to continue with his proceedings that involved the defendant.
In considering whether a guilty verdict was against the weight
of the evidence produced at trial under Rule 3:20-1, "our task is
to decide whether 'it clearly appears that there was a miscarriage
of justice under the law.'" State v. Smith, 262 N.J. Super. 487,
512 (App. Div.) (quoting R. 2:10-1), certif. denied, 134 N.J. 476
(1993). "We must sift through the evidence 'to determine whether
any trier of fact could rationally have found beyond a reasonable
doubt that the essential elements of the crime were present.'"
Ibid. (quoting State v. Carter, 91 N.J. 86, 96 (1982)). Our
"objective is not to second-guess the jury but to correct [an]
injustice that would result from an obvious jury error." State
v. Saunders, 302 N.J. Super. 509, 524 (App. Div.), certif. denied,
16 A-4193-14T2 151 N.J. 470 (1997) (citation omitted). We do not evaluate the
evidence and determine anew how we might have decided the issues.
Applying these standards, we conclude that the State
presented sufficient proofs to establish beyond a reasonable doubt
that defendant was guilty of witness tampering. To prove witness
tampering, the State was required to prove that "believing that
an official proceeding or investigation is pending or about to be
instituted[,]" defendant "knowingly engages in conduct which a
reasonable person would believe would cause a witness" to:
(1) Testify or inform falsely;
(2) Withhold any testimony, information, document or thing;
(3) Elude legal process summoning him to testify or supply evidence;
(4) Absent himself from any proceeding or investigation to which he has been legally summoned; or
(5) Otherwise obstruct, delay, prevent or impede an official proceeding or investigation.
Witness tampering . . . is a crime of the second degree if the actor employs force or threat of force. Otherwise it is a crime of the third degree.
[N.J.S.A. 2C:28-5(a).]
Witness tampering "is committed only when a defendant acts
believing an official proceeding has been or is about to be
17 A-4193-14T2 instituted." State v. D.A., 191 N.J. 158, 170 (2007). "Although
there could be a case in which a defendant actually expresses his
belief in the pendency of official action at the time of a
tampering offense, . . . such a scenario would be unusual." Ibid.
"Therefore, the proofs in a tampering case will ordinarily be
circumstantial[,]" and "evidence that defendant was aware of facts
that would lead a reasonable person to believe that an official
action was pending or about to be instituted" will be necessary
"to establish the requisite state of mind." Ibid.
"For example, if a defendant in a tampering case has been
arrested or has been served with a complaint . . . , he will
satisfy the requirement of a belief that an official proceeding
is pending because a reasonable person would hold that belief
based on the facts." Id. at 170-71. "The same is true if a
defendant encourages a witness, who he knows has been called to
testify . . . to elude the legal process of which he is aware,
N.J.S.A. 2C:28-5(a)(3), or absents himself from a proceeding or
investigation to which he has been summoned, N.J.S.A. 2C:28-
5(a)(4)." D.A., supra, 191 N.J. at 171.
Here, there was ample evidence showing that defendant was
aware of a pending official proceeding when he contacted Singer
on March 21, 2012. Indeed, defendant admitted being aware of the
pending criminal complaint filed by Singer in September 2011, and
18 A-4193-14T2 Singer testified that he construed defendant's threat not to "show
up" to refer to Singer's anticipated testimony in connection with
the September 2011 complaint. Therefore, the trial judge properly
denied defendant's motion for a new trial and we reject defendant's
contention to the contrary.
Affirmed.
19 A-4193-14T2