STATE OF NEW JERSEY VS. WILLIAM J. KANE (16-02-0316, MIDDLESEX COUNTY AND STATEWIDE)

• Court: New Jersey Superior Court Appellate Division
• Decided: January 26, 2021
• Docket: A-1996-18T4
• Status: Unpublished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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-1996-18T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

WILLIAM J. KANE,

Defendant-Appellant. _______________________

Submitted December 16, 2020 – Decided January 26, 2021

Before Judges Fuentes, Rose, and Firko.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 16-02- 0316.

Joseph E. Krakora, Public Defender, attorney for appellant (Peter A. Gaudioso and Althea L. Daley, Designated Counsel, on the brief).

Yolanda Ciccone, Middlesex County Prosecutor, attorney for respondent (Joie D. Piderit, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM Defendant William J. Kane appeals from a November 13, 2018 judgment

of conviction for drug offenses after trial. We affirm.

I.

We derive the following facts from the suppression motion and trial

record. On July 23, 2015, at approximately 3:00 p.m., Detectives David Guzman

and Juan DeJesus of the Perth Amboy police department were on plain-clothes

patrol in an unmarked car. Detective Guzman, who was driving the vehicle,

observed defendant driving a blue Mitsubishi Galant in the opposite direction.

Detective Guzman followed defendant because the Detective had received

information "from several confidential informants stating that [defendant] wa s

. . . distributing quantities of heroin within the City of Perth Amboy." After

making a U-turn, the Detectives surveilled defendant, who was known to

Detective Guzman from two previous encounters, 1 for five or six blocks.

Defendant pulled into a residential area, and Detective Guzman parked

one vehicle length behind him. Detective Guzman observed a man, later

identified as co-defendant Frank Kochick, approach the driver's side of

defendant's vehicle and reach through the open window. Based on his training

1 Detective Guzman previously arrested defendant on two separate occasions, first for "having a prescription on him," and the second for a "DUI situation." A-1996-18T4 2 in drug recognition and distribution and the information he received from

confidential informants, Detective Guzman suspected he observed defendant

engaged in a narcotics transaction. Detectives Guzman and DeJesus approached

defendant's vehicle with their badges displayed, and Detective Guzman yelled,

"Police." In response, defendant attempted to drive away but his car only moved

about a foot.

Upon approaching the driver's side of defendant's vehicle, Detective

Guzman observed an open black plastic bag containing eighteen glassine

envelopes of heroin stamped, "Tom & Jerry," and money on defendant's lap.

Defendant and Kochick "became a little startled." Defendant and Kochick were

placed under arrest. Following a search incident to arrest, an LG flip phone and

$362 in cash were recovered from defendant. No money or drugs were found

on Kochick.

After his arrest, Kochick gave a videotaped statement to Detective

Guzman. Kochick stated he was sitting on a friend's porch when defendant,

known to him as "Close," pulled up in his Mitsubishi. According to Kochick,

defendant is a "Spanish" male who is bald, has "no facial hair," and "always

wears a bandana." After encountering defendant on the day in question, Kochick

attempted to purchase two bags of heroin for $18 and put the money on

A-1996-18T4 3 defendant's lap. When the Detectives approached, the sale was aborted.

Kochick indicated that he previously purchased heroin from defendant on

approximately ten occasions.

In February 2016, a Middlesex Grand Jury returned Indictment No. 16 -

02-0316, charging defendant with third-degree possession of a controlled

dangerous substance (CDS), N.J.S.A. 2C:35-10(a) (count one); and third-degree

possession of CDS with intent to distribute, N.J.S.A. 2C:35-5 (count two).

Defendant filed a motion to suppress the videotaped statement Kochick

gave to Detective Guzman after the State informed the trial court it anticipated

Kochick would have recall issues during his trial testimony. The prosecutor

reviewed the videotaped statement with Kochick during a pre-trial conference,

and he responded, "Even though that's me, I don’t recall any of the facts." The

State sought to elicit testimony from Kochick at trial first before making an

application under Rule 803(c)(5) to have the videotaped statement played for

the jury as a recorded recollection.

The trial court conducted an in limine evidentiary hearing. In its ruling,

the court permitted Kochick to read a redacted version of his statement to the

jury as past recollection recorded under Rule 803(c)(5). The jury was provided

with a transcript of the videotaped statement simultaneously as Kochick read it

A-1996-18T4 4 into the record. The trial court gave a limiting instruction to the jury on this

issue.

In pertinent part, Kochick's statement explained how he bought "dope"

from the "Hispanic guy" in the Mitsubishi. Kochick also stated he threw $18 in

the window in exchange for two bags of heroin, but the police arrived before the

transaction could be completed. On cross-examination, Kochick testified he

could not recall what happened on July 23, 2015, or whether his statement to

police was truthful. He also stated that he did not want to testify at trial because

he did not remember the events of that day.

Defendant moved to suppress the evidence seized during the search of his

vehicle. The trial court held an evidentiary hearing on November 1, 2017, and

denied defendant's motion in an oral opinion with a written order.

On November 14, 2017, the jury found defendant guilty of both counts in

the indictment. On February 5, 2018, the trial court denied defendant's motion

to set aside the verdict and granted him permission to apply for entry into Drug

Court. The application was granted, and on October 25, 2018, defendant was

sentenced to five-years' probation in Drug Court.

This appeal followed, with defendant presenting the following arguments:

A-1996-18T4 5 POINT ONE

THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION TO SUPPRESS WHERE THE DETECTIVES DID NOT HAVE A REASONABLE OR ARTICULABLE BASIS TO STOP AND SEARCH THE DEFENDANT.

POINT TWO

THE TRIAL COURT ERRED IN ADMITTING THE STATEMENT OF CO-DEFENDANT FRANK KOCHICK AS A PAST RECOLLECTION RECORDED AND PROVIDING THE JURY WITH THE ACCOMPANYING TRANSCRIPT.

POINT THREE

THE TRIAL COURT ERRED IN FAILING TO GRANT DEFENDANT'S MOTION FOR A NEW TRIAL.

II.

We apply a highly deferential standard of review to a trial judge's

determination on a motion to suppress. State v. Gonzales, 227 N.J. 77, 101

(2016). We will

uphold the motion judge's factual findings so long as sufficient credible evidence in the record supports those findings. Those factual findings are entitled to deference because the motion judge . . . has the "opportunity to hear and see the witnesses and to have the 'feel' of the case, which a reviewing court cannot enjoy."

A-1996-18T4 6 [Ibid. (citation omitted) (quoting State v. Johnson, 42 N.J. 146, 161 (1964)).]

In State v. Nelson, 237 N.J. 540, 551 (2019), our Supreme Court

reiterated: "An appellate court should not disturb the trial court's findings

merely because 'it might have reached a different conclusion were it the trial

tribunal' or because 'the trial court decided all evidence or inference conflicts in

favor of one side' in a close case," quoting State v. Elders, 192 N.J. 224, 244

(2007). "The governing principle, then, is that '[a] trial court's findings should

be disturbed only if they are so clearly mistaken that the interests of jus tice

demand intervention and correction.'" Id. at 552. See also State v. Robinson,

200 N.J. 1, 15 (2009).

"[U]nder . . . the Fourth Amendment to the United States Constitution and

Article I, Paragraph 7 of our State Constitution, searches and seizures conducted

without warrants issued upon probable cause are presumptively unreasonable

and therefore invalid." Elders, 192 N.J. at 246. Here, the trial court found

Detective Guzman stopped defendant because:

[O]bviously he knew [defendant], had prior . . . dealings with [defendant], he knew [defendant] was into heroin obviously because of . . . prior encounters, one in which a passenger was in the middle of shooting up when he encountered [defendant].

A-1996-18T4 7 He knew his car and for lack of better terms, whether it's reliable, unreliable, the word on the street was [defendant's] dealing heroin, and he knew what— he knew him and he knew the car. And I think an inference can be drawn that these guys aren't going to follow any old car. They're not going to waste their time.

They're . . . going to invest their time and efforts in something that they think is going to be fruitful, so they followed him. And he pulled over on his own and they can pull over and they can—surveil him. So far, there's no interaction and no . . . restriction . . . of their movement.

And they walk up to the car . . . . They see Kochick's coming out and reaching to . . . what appeared to perhaps be a . . . a hand-to-hand transaction that was . . . occurring.

So, you throw all that into the mix and I think it's safe to say that they had reasonable articulable suspicion to detain them and—for an investigati[ve] detention. But what happened was before there could even be an investigati[ve] detention, [Detective] Guzman saw that bag on [defendant's] lap with the heroin folds in it.

So, it never got to the point whether it was going to be an investigative detention. It went straight to an arrest based on—plain view .

In light of the court's factual findings, we are satisfied the court correctly

denied defendant's motion to suppress. In doing so, we defer to the factual

findings made by the trial court because they are well-supported by the evidence

A-1996-18T4 8 presented. Nelson, 237 N.J. at 551. In view of the totality of the circumstances,

which rapidly unfolded in this case, the Detectives had probable cause to arrest

defendant. Ibid.

According to the testimony of the Detectives, found credible by the trial

court, Detective Guzman had arrested defendant in the past and received

information from reliable, confidential informants that defendant was dealing

heroin in Perth Amboy. Detective Guzman saw Kochick place his hand in the

window of defendant's vehicle and suspected a hand-to-hand narcotics

transaction was occurring based upon his knowledge of defendant in conjunction

with the informants' tips. Moreover, both defendant and Kochick "appeared

startled," and defendant attempted to drive away.

We conclude the totality of the circumstances justified the Detectives' stop

of defendant's vehicle. See State v. Bacome, 228 N.J. 94, 103 (2017) ("During

a Terry [2] motor vehicle stop, a police officer may detain individuals for a brief

period, if the stop was 'based on reasonable and articulable suspicion that an

offense . . . has been or is being committed.'"). Detective Guzman observed the

drugs in plain view on defendant's lap. In State v. Gonzalez, 227 N.J. 77 (2016),

our Supreme Court modified the plain view doctrine to eliminate the

2 Terry v. Ohio, 392 U.S. 1 (1968). A-1996-18T4 9 "inadvertent" presence of the police officer required under State v. Bruzzese, 94

N.J. 210, 236-38 (1983). The Court held: "Provided that a police officer is

lawfully in the viewing area and the nature of the evidence is immediately

apparent (and other constitutional prerequisites are met), the evidence may be

seized." Gonzalez, 227 N.J. at 82 (emphasis added).

We are convinced that the evidence presented at the suppression hearing

fully supports the trial court's determination that the Detectives' stop of

defendant's vehicle and seizure of the evidence were justified under the exigent

circumstances and plain view exceptions to the warrant requirement.

III.

We next consider defendant's argument that the trial court erred in

admitting portions of Kochick's videotaped statement to the police as past

recollection recorded during the trial. Prior to trial, the court conducted a Rule

104(a) hearing. Kochick testified at the hearing that he recalled portions of the

statement he gave to police but not the entirety of the statement. The trial court

found Kochick met the test of insufficient present recollection under Rule

803(c)(5) and permitted him to read into the record only the parts of the

statements he did not recall. The transcript of Kochick's statement was not

A-1996-18T4 10 admitted into evidence as defendant contends on appeal but was provided to the

jury as an aid when Kochick testified.

When reviewing a trial court's decision to admit evidence, we are "limited

to examining the decision for abuse of discretion." State v. Kuropchak, 221 N.J.

368, 385 (2015) (quoting Hisenaj v. Kuehner, 194 N.J. 6, 12 (2008)). Under the

abuse of discretion standard, "an appellate court should not substitute its own

judgment for that of the trial court, unless the trial court's ruling 'was so wide of

the mark that a manifest denial of justice resulted.'" Id. at 385-86 (quoting State

v. Marrero, 148 N.J. 469, 484 (1997)). "Considerable latitude is afforded a trial

court in determining whether to admit evidence . . . ." State v. Feaster, 156 N.J.

1, 82 (1998).

Rule 803(c)(5) allows a party to read a past recorded recollection when

the witness does not remember the circumstances of what occurred or his or her

previous testimony. ("When the witness does not remember part or all of the

contents of a writing, the portion the witness does not remember may be read

into evidence . . . ."); see also State v. Cestone, 38 N.J. Super. 139, 146 (App.

Div. 1955). In State v. Gore, our Supreme Court set forth the prerequisites for

a statement to be admissible under Rule 803(c)(5). 205 N.J. 363, 376 (2011).

The witness must be shown to have an "impaired memory." Ibid. (citing State

A-1996-18T4 11 v. Williams, 226 N.J. Super. 94, 103 (App. Div. 1988)). After that is satisfied,

then the hearsay exception in Rule 803(c)(5) becomes applicable. The Rule

allows for the use of a written statement to refresh a witness's recollection:

A statement concerning a matter about which the witness is unable to testify fully and accurately because of insufficient present recollection if the statement is contained in a writing or other record that (A) was made at a time when the fact recorded actually occurred or was fresh in the memory of the witness; and (B) was made by the witness or under the witness' direction or by some other person for the purpose of recording the statement at the time it was made; and (C) the statement concerns a matter of which the witness had knowledge when it was made. When the witness does not remember part or all of the contents of a writing, the portion the witness does not remember may be read into evidence but shall not be introduced as an exhibit over objection. This exception does not apply if the circumstances indicate that the statement is not trustworthy.

[N.J.R.E. 803(c)(5).]

In addition, Rule 607 allows extrinsic credibility evidence to be introduced by

any party. See State v. Parker, 216 N.J. 408, 418 (2014) ("In short [Rule] 607

permits the introduction of extrinsic evidence affecting a witness'[s] credibility

regardless of whether that evidence is relevant to any other issue in the case.")

Having reviewed the record, we conclude the trial court did not abuse its

discretion in admitting a portion of Kochick's statement to the police. Kochick's

A-1996-18T4 12 statement met the requirements of Rule 803(c)(5). The statement was made

within thirty minutes on the day of his and defendant's arrest and concerned

matters that Kochick recalled at the time he gave his statement but did not

remember at the time of trial. The trial court noted that Kochick's inability to

recall matters that occurred on July 23, 2015, was "genuine." In addition, the

record supports the trial court's conclusion that Kochick's statement was

"trustworthy" and consistent with the observations Detective Guzman made of

his conduct. Moreover, the trial court found Kochick's answers to questions

were responsive, and he did not show any signs of duress.

We discern no abuse of discretion in allowing the State to use portions of

Kochick's police interview videotaped statement, as probative in challenging his

credibility at trial. The jury was able to consider Kochick's live testimony and

the portions of his statement given to police that he did not presently recall and

gauge his demeanor on the witness stand. Under the circumstances, the use of

Kochick's statement to the police was not an error "clearly capable of producing

an unjust result." R. 2:10-2.

IV.

Finally, defendant argues that the trial court erred in failing to grant his

motion for a new trial under Rule 3:20-1. During its opening statement, the

A-1996-18T4 13 prosecutor mentioned that Detectives Guzman and DeJesus were conducting

"surveillance" of defendant. In defendant's view, Detective Guzman's testimony

regarding this prior knowledge and surveillance of defendant, coupled with the

use of Kochick's redacted transcript, warrants a new trial. We find no merit to

defendant's argument.

Rule 3:20-1 provides that a trial court may not set aside a jury's verdict

and order a new trial "unless, having given due regard to the opportunity of the

jury to pass upon the credibility of the witnesses, it clearly and convincingly

appears that there was a manifest denial of justice under the law." Similarly, a

trial court's ruling on a defendant's new trial motion "shall not be reversed unless

it clearly appears there was a miscarriage of justice under the law." R. 2:10-1;

State v. Sims, 65 N.J. 359, 373-74 (1974).

"The 'semantic' difference between 'miscarriage of justice' and 'manifest

denial of justice under the law' is an 'oversight and should not be construed as

providing for a different standard in criminal cases at the trial level than that

applicable to appellate review . . . .'" State v. Armour, 446 N.J. Super. 295, 306

(App. Div. 2016) (quoting Pressler & Verniero, Current N.J. Court Rules, cmt.

2 on R. 3:20-1 (2021)). The Supreme Court has "explained that a 'miscarriage

of justice' can arise when there is a 'manifest lack of inherently credible evidence

A-1996-18T4 14 to support the finding,' when there has been an 'obvious overlooking or und er-

valuation of crucial evidence,' or when the case culminates in 'a clearly unjust

result.'" Hayes v. Delamotte, 231 N.J. 373, 386 (2018) (quoting Risko v.

Thompson Muller Auto. Grp., Inc., 206 N.J. 506, 521-22 (2011)).

The decision whether to grant or deny a motion for a new trial is left to

the trial judge's sound discretion, and we should interfere with the exercise of

that discretion only when "a clear abuse has been shown." State v. Brooks, 366

N.J. Super. 447, 454 (App. Div. 2004) (quoting State v. Russo, 333 N.J. Super.

119, 137 (App. Div. 2000)).

Here, the trial court noted the Detectives improvidently testified as to their

surveillance of defendant and that Detective Guzman told Detective DeJesus he

recognized defendant. However, the trial court concluded the State's reference

to surveillance did not rise to the level of prejudice that would warrant a new

trial. Moreover, defense counsel opted against a curative instruction given that

the remark was, in his own description, "fleeting."

A trial court's denial of a defendant's motion may not be reversed on

appeal unless "it clearly appears that there was a miscarriage of justice under

the law." R. 2:10-1; Sims, 65 N.J. at 373-74. It is also well-established that a

trial court may not "set aside the verdict of the jury as against the weight of the

A-1996-18T4 15 evidence unless, having given due regard to the opportunity of the jury to pass

upon the credibility of the witnesses, it clearly and convincingly appears that

there was a manifest denial of justice under the law." R. 3:20-1.

Given the totality of the evidence and reasonable inferences that the jury

could have drawn from the evidence, we conclude that defendant's motion for a

new trial was properly denied. Detective Guzman's testimony was relevant on

surveillance to explain to the jury why the Detectives were in the neighborhood

when they observed the hand-to-hand drug transaction. And, the prosecutor

made no reference to surveillance during closing arguments. The trial court

found from its "feel of the case" that the comments and testimony had no

prejudicial impact on the outcome of the case. See Hayes 231 N.J. at 386

(citations omitted). These findings are supported in the trial record and were

not erroneous.

Affirmed.

A-1996-18T4 16