RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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 only binding 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-2651-15T2
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
JOSEPH A. LICCIARDELLO, a/k/a JOSEPH A. LICCIADELLO,
Defendant-Appellant.
Submitted June 1, 2017 – Decided June 22, 2017
Before Judges Carroll, Gooden Brown and Farrington.
On appeal from the Superior Court of New Jersey, Law Division, Gloucester County, Indictment No. 14-04-0294.
Joseph E. Krakora, Public Defender, attorney for appellant (Rebecca Gindi, Assistant Deputy Public Defender, of counsel and on the brief).
Sean F. Dalton, Gloucester County Prosecutor, attorney for respondent (Joseph H. Enos, Jr., Senior Assistant Prosecutor, of counsel and on the brief).
PER CURIAM On April 2, 2014, a Gloucester County grand jury returned an
indictment charging defendant Joseph Licciardello with fourth-
degree criminal sexual contact, N.J.S.A. 2C:14-3b (count one);
third-degree criminal restraint, N.J.S.A. 2C:13-2a (count two);
and second-degree attempt to commit sexual assault, N.J.S.A. 2C:5-
1/2C:14-2c(1) (count three).
Count one was dismissed on motion of the State prior to trial.
At the conclusion of the trial, the jury found defendant guilty
of the lesser-included offenses of false imprisonment as a
disorderly persons offense, N.J.S.A. 2C:13-3, and fourth-degree
attempted criminal sexual contact, N.J.S.A. 2C:5-1a(3)/2C:14-3b.
On January 29, 2016, defendant was sentenced to a three-year
probationary term on the attempted sexual contact conviction. As
conditions of his probation, defendant was required to perform 150
hours of community service and undergo sex offender counseling and
treatment. The court imposed the appropriate fees, penalties, and
assessment on both convictions, and ordered defendant to comply
with all Megan's Law1 requirements. This appeal followed.
On appeal, defendant raises the following arguments:
POINT I
THE TRIAL COURT ERRED BY FAILING TO REDACT IRRELEVANT PORTIONS OF [DEFENDANT'S]
1 N.J.S.A. 2C:7-1 to -23.
2 A-2651-15T2 STATEMENT TO THE POLICE WHICH PORTAYED HIM TO THE JURY AS AN ANGRY, SEX-ADDICTED DANGER TO SOCIETY IN VIOLATION OF N.J.R.E. 401, 402, 403, 404(A), AND 404(B) (Not Raised Below). A. [Defendant's] Prior Non-Violent, Lawful Sexual Activity And Prior Instances of Anger Were Wholly Irrelevant To the Present Offenses Under N.J.R.E. 401 and 402.
B. Because Character Evidence that [Defendant] Is Prone To Anger And Sex-Addicted Served Only To Suggest That [Defendant's] Conduct Underlying the Offenses Conformed Thereto, It was Inadmissible Under N.J.R.E. 404.
1. Evidence That [Defendant] has a "bad temper" and "definitely has a sex problem" was Inadmissible Under N.J.R.E. 404(a).
2. Evidence That [Defendant] has a "bad temper" causing him to black out, and "definitely [has a sex] problem" which caused him to frequently masturbate, watch pornography, and have sex with his ex-girlfriend, was inadmissible under N.J.R.E. 404(b).
3. Even If the Court Finds That The Evidence Was Not Excludable Under N.J.R.E. 401, 402, 403, 404(a) or 404(b), A New Trial Is Required Because The Trial Court Gave No Limiting Instruction To The Jury In Violation of Cofield And Hampton.
POINT II
[DEFENDANT'S] CONVICTION FOR THE LESSER- INCLUDED OFFENSE OF THE CHARGED CRIME OF ATTEMPTED SEXUAL ASSAULT CANNOT STAND BECAUSE THE CONTRADICTORY AND CONFUSING JURY INSTRUCTIONS AND VERDICT SHEET MAKE IT IMPOSSIBLE TO DETERMINE WHETHER THE JURY FOUND
3 A-2651-15T2 [DEFENDANT] GUILTY OF ATTEMPTED CRIMINAL SEXUAL CONTACT OR THE COMPLETED OFFENSE OF CRIMINAL SEXUAL CONTACT, CREATING A SERIOUS RISK OF A PATCHWORK VERDICT. (Not Raised Below).
After reviewing the record in light of the contentions advanced
on appeal, we affirm.
I.
We briefly summarize the evidence presented during the
December 2015 trial, at which the victim, V.P.,2 and Sergeant John
Gigante of the Deptford Township Police Department, testified.
The charges stemmed from an incident between twenty-year-old
defendant and seventeen-year-old V.P. while they were alone in
defendant's car after hours of tailgating with friends before a
concert. V.P. testified that instead of taking her home, defendant
pulled his car over on two separate occasions and attempted to
have sex with her, holding her neck down and ultimately ripping
her underwear. V.P. asserted that she repeatedly said "no" and
tried to push defendant away. She maintained defendant did not
stop and let her out of the car until she showed him she was having
her period, at which point he "got angry" and "really mad." She
reported the incident to the police the following day, after
defendant failed to return a camera he took from her. V.P.'s
2 Pursuant to Rule 1:38-3(c)(12), we use initials to protect the identity of the victim of a sexual offense.
4 A-2651-15T2 ripped underwear and photographs of the marks on her neck were
introduced in evidence at trial.
Defendant gave a statement to Sgt. Gigante in which he claimed
he was drunk and admitted he was trying to have sex with V.P.,
that he held her down by her shoulders, and that V.P. was squeezing
her legs together while he was trying to push them apart.
Defendant conceded he had a bad temper and that evening was a
"little mad." When asked by Gigante at what point he stopped,
defendant responded "[i]t was just like I [] just snapped and went
back to reality and just realized what I was doing was wrong."
Defendant further stated he was not "gross[ed] out" that V.P. had
her period, and elaborated: "I've had sex with my girlfriend on
her period before. But [] no, like that's not what made me stop.
What made me stop is [] I just knew . . . that I was taking it too
far."
Defendant's recorded statement was ruled admissible at a
pretrial Miranda3 hearing. The statement was played at trial with
redactions that were agreed upon by the State and defendant.
However, portions of the statement referring to defendant having
a bad temper that caused him to blackout at times and a "problem"
3 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
5 A-2651-15T2 involving frequent masturbation, viewing pornography, and having
frequent daily consensual sexual intercourse with his ex-
girlfriend, were not redacted. The defense at trial was that
defendant voluntarily renounced any criminal purpose.4 As noted,
the jury ultimately acquitted defendant of attempted sexual
assault and criminal restraint, but found him guilty of the lesser-
included offenses of attempted sexual contact and false
imprisonment.
II.
Defendant argues for the first time on appeal that he was
deprived of a fair trial because the trial court did not sua sponte
exclude as irrelevant or unduly prejudicial the un-redacted
portions of the statement pursuant to N.J.R.E. 401, 402, 403, or
404, or issue a curative instruction when the statement was played
for the jury. Defendant also argues that the court erred in
failing to give a Hampton5 instruction to guide the jury in
evaluating the credibility of portions of defendant's statement
due to Gigante's improper interrogation tactics.
We view defendant's arguments through the prism of the plain
error standard because he did not object to the admission of the
4 See N.J.S.A. 2C:5-1(d). 5 State v. Hampton, 61 N.J. 250, 272 (1972).
6 A-2651-15T2 redacted statement at trial or request any limiting instructions.
R. 2:10-2. Under that standard, "[a]ny error or omission shall
be disregarded by the appellate court unless it is of such a nature
as to have been clearly capable of producing an unjust result[.]"
Ibid.; see State v. Galicia, 210 N.J. 364, 386 (2012). As our
Supreme Court recently stated, when applying the plain error
doctrine to evidence that should have been excluded, "the error
will be disregarded unless a reasonable doubt has been raised
whether the jury came to a result that it otherwise might not have
reached." State v. R.K., 220 N.J. 444, 456 (2015) (citing State
v. Daniels, 182 N.J. 80, 95 (2004)). In weighing the effect of
improperly admitted evidence, we may assess "if the State's case
is particularly strong." Ibid.
As defendant correctly points out, evidence of prior crimes
and bad acts are not admissible to prove that a criminal defendant
had a propensity to engage in criminal activity or acted in
conformity with prior criminal activity. N.J.R.E. 404(b). The
concern in admitting evidence of prior bad acts is that "the jury
may convict the defendant because he is a bad person in general."
State v. Cofield, 127 N.J. 328, 336 (1992) (citation omitted). If
evidence is admitted pursuant to N.J.R.E. 404(b), then the court
must give a limiting instruction specifically directing the jury
7 A-2651-15T2 on the limited use of the evidence. State v. Nance, 148 N.J. 376,
391 (1997).
"The threshold determination under [N.J.R.E.] 404(b) is
whether the evidence relates to 'other crimes,' and thus is subject
to continued analysis under [N.J.R.E.] 404(b)[.]" State v. Rose,
206 N.J. 141, 179 (2011). Although the rule refers to "evidence
of other crimes, wrongs or acts," evidence and arguments to the
jury suggestive of a defendant's prior criminal activity — such
as gang membership, mugshots, references to defendant being in
jail or prison, and aliases suggesting membership in a criminal
class — have all been held to implicate Rule 404(b). See State
v. Harris, 156 N.J. 122, 172-73 (1998); State v. Goodman, 415 N.J.
Super. 210, 227-28 (App. Div. 2010), certif. denied, 205 N.J. 78
(2011); State v. Salaam, 225 N.J. Super. 66, 72-76 (App. Div.),
certif. denied, 111 N.J. 609 (1988); State v. Childs, 204 N.J.
Super. 639, 651-52 (App. Div. 1985). See also State v. Skinner,
218 N.J. 496, 517-19 (2014) (holding that violent, profane, and
disturbing rap lyrics were subject to a N.J.R.E. 404(b) analysis).
Here, we disagree with defendant that references in his
statement to having a bad temper, or "a problem" that led him to
masturbate, watch pornography, and engage in frequent consensual
sex with his ex-girlfriend, constitute "crimes, wrongs or acts"
within the ambit of N.J.R.E. 404(b). While no doubt distasteful
8 A-2651-15T2 to some, and admittedly a close call, we conclude that such acts
are not indicative of prior criminal behavior. Accordingly, they
are not "crimes, wrongs or acts" under N.J.R.E. 404(b) and the
trial judge did not err by failing to apply the four-prong test
established in Cofield, supra, 127 N.J. at 338. See State v.
Jones, 425 N.J. Super. 258, 274 (App. Div. 2012) (noting our review
is plenary where the trial court fails to conduct a required
Cofield hearing (citing Rose, supra, 206 N.J. at 157-58)).
We next address defendant's contentions with respect to
N.J.R.E. 401, 402, and 403. "Except as otherwise provided in
these rules or by law, all relevant evidence is admissible."
N.J.R.E. 402. "'Relevant evidence' means evidence having a
tendency in reason to prove or disprove any fact of consequence
to the determination of the action." N.J.R.E. 401. N.J.R.E. 403
provides that relevant evidence "may be excluded if its probative
value is substantially outweighed by the risk of (a) undue
prejudice, confusion of issues, or misleading the jury, or (b)
undue delay, waste of time, or needless presentation of cumulative
evidence." The burden of proof rests on defendant to show actual
undue prejudice, rather than the mere possibility of prejudice,
substantially outweighs the probative value. State v. Swint, 328
N.J. Super. 236, 253 (App. Div.), certif. denied, 165 N.J. 492
(2000).
9 A-2651-15T2 In the present case, defendant did not object to the admission
of the redacted statement, which he now contends contains portions
that are irrelevant. Consequently, the trial court was deprived
of the opportunity to rule on the relevance of the portions of the
statement that defendant now disputes. Further, it is unclear
from the record whether defense counsel made a tactical decision
not to object to the evidence. Defense counsel may well have
believed defendant's statements showed he lacked the requisite
intent to sexually assault V.P., and instead portrayed him as
merely sexually aroused and intoxicated. Notably also, defense
counsel in summation specifically acknowledged that defendant
engaged in sexual intercourse in the past with girls who had their
period. Counsel stated: "You heard [defendant] say during his
statement that he has had sex with his girlfriends in the past on
their period and that wasn't why he didn't go through with it.
You heard him say that." Thus, in pursuing a voluntary
renunciation defense, counsel relied on defendant's statement to
support the argument that defendant ceased his sexual advances of
his own accord and not because V.P. had her period, as she
testified.
To rebut defendant's renunciation defense, the State during
summation responded "[h]e's so sexually motivated that he says he
has a problem. And he says and he agreed there's no doubt she
10 A-2651-15T2 didn't want it. But that didn't stop his attempt and it wasn't
for lack of trying." We note further that defendant's statement
that he had a bad temper and got mad during the incident was
relevant because it corroborated the victim's version of events.
In the end, we are tasked with deciding whether the portions
of the statement that were introduced at trial without objection,
but are now on appeal disputed, warrant reversal of defendant's
conviction under the plain error standard. We must thus view the
evidence presented at trial as a whole, including the entirety of
defendant's statement, to determine "whether the jury came to a
result that it otherwise might not have reached." R.K., supra,
220 N.J. at 456. Here, defendant admitted holding the victim down
by the shoulders in his attempt to have sex with her, and conceded
that she continued to resist his sexual advances on two separate
occasions. V.P. identified her underwear that was torn during the
struggle and photos of marks that were left on her neck. Defendant
admitted "taking it too far" and "realized what I was doing was
wrong." Viewing the record as a whole, even if the challenged
evidence should have been excluded, the failure by the trial court
to do so sua sponte does not meet the plain error standard.
Moreover, not only did defendant fail to object to the
redacted statement or seek additional redactions to it, he acceded
to its admission in evidence. Prior to admitting the evidence,
11 A-2651-15T2 the prosecutor represented: "The audio statement has been redacted
in certain portions and the parties have agreed to the redactions."
Under the doctrine of invited error, "[t]rial errors which were
induced, encouraged or acquiesced in or consented to by defense
counsel ordinarily are not a basis for reversal on appeal." State
v. Harper, 128 N.J. Super. 270, 277 (App. Div.), certif. denied,
65 N.J. 574 (1974).
For similar reasons, we reject defendant's argument that a
new trial is required because the trial judge failed to instruct
the jury on the reliability of defendant's statement pursuant to
Hampton, supra, 61 N.J. at 272. A trial court should provide a
"Hampton" charge "whenever a defendant's oral or written
statements, admissions, or confessions are introduced in evidence"
regardless of "[w]hether [the charge is] requested or not[.]"
State v. Jordan, 147 N.J. 409, 425 (1997) (referencing Hampton,
supra, 61 N.J. at 272). A jury "'shall be instructed that they
should decide whether . . . the defendant's [statement] is true,'"
and if they conclude that it is "'not true, then they must . . .
disregard it for purposes of discharging their function as fact
finders on the ultimate issue of guilt or innocence.'" Jordan,
supra, 147 N.J. at 419 (quoting Hampton, supra, 61 N.J. at 272).
The failure to give the charge, however, is not always
reversible error. Id. at 425, 428. A reviewing court will only
12 A-2651-15T2 reverse when the omission is clearly capable of producing an unjust
result in the context of the entire case. Id. at 425, 429. If
the statements are unnecessary to prove the defendant's guilt
"because there is other evidence that clearly establishes guilt,
or if the defendant has acknowledged the truth of his statement,"
the failure to give a Hampton charge will not require reversal.
Id. at 425-26.
Here, defendant's statement was not oral or written. Rather,
it was audio recorded, and its accuracy was not disputed at trial.
We thus discern no error, no less plain error, in the failure to
provide the jury with a Hampton charge. Moreover, during the
charge conference, defense counsel requested that the charge not
be given. Again, under the invited error doctrine, because
defendant specifically asked the trial court not to give the
charge, we discern no error in the judge's failure to do so.
III.
Defendant's remaining argument, also raised for the first
time on appeal, is that his conviction for attempted criminal
sexual contact should be reversed because the trial court gave
contradictory and confusing instructions on whether defendant was
charged with attempt or the completed crime of criminal sexual
contact.
13 A-2651-15T2 "[A]ppropriate and proper jury charges are essential to a
fair trial." State v. Baum, 224 N.J. 147, 158-59 (2016) (quoting
State v. Reddish, 181 N.J. 553, 613 (2004)). "The trial court
must give 'a comprehensible explanation of the questions that the
jury must determine, including the law of the case applicable to
the facts that the jury may find.'" Id. at 159 (quoting State v.
Green, 86 N.J. 281, 287-88 (1981)). The alleged error must be
considered in light of "the totality of the entire charge, not in
isolation." State v. Chapland, 187 N.J. 275, 289 (2006) (citation
omitted). Where, as here, a defendant fails to object to an error
regarding a jury charge, we once again review for plain error.
State v. Funderburg, 225 N.J. 66, 79 (2016). Moreover, the failure
to "interpose a timely objection constitutes strong evidence that
the error belatedly raised [] was actually of no moment." State
v. White, 326 N.J. Super. 304, 315 (App. Div. 1999), certif.
denied, 163 N.J. 397 (2000).
Here, the judge first instructed the jury on attempt, and
then the substantive crimes of sexual assault and the lesser-
included offense of sexual contact. While perhaps not the model
of clarity, we conclude from our review of the entire charge that
the jury understood it should consider those attempted rather than
completed crimes. Moreover, the verdict sheet that the judge
explained to the jury clearly referenced the charged crime of
14 A-2651-15T2 attempted sexual assault and the lesser-included offense of
attempted sexual contact. Accordingly, we discern no plain error
in the charge that prejudiced defendant.
Affirmed.
15 A-2651-15T2