NOT FOR PUBLICATION WITHOUT THE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-2368-15T2
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
DANIEL A. CATALANO,
Defendant-Appellant.
_____________________________________
Submitted May 4, 2017 – Decided July 6, 2017
Before Judges Lihotz and O'Connor.
On appeal from Superior Court of New Jersey,
Law Division, Monmouth County, Indictment
No. 15-02-0354.
Joseph E. Krakora, Public Defender, attorney
for appellant (Monique Moyse, Designated
Counsel, on the brief).
Christopher J. Gramiccioni, Monmouth County
Prosecutor, attorney for respondent (Paul H.
Heinzel, Assistant Prosecutor Senior
Litigation Counsel, of counsel; Lisa Sarnoff
Gochman, Legal Assistant, on the brief).
Appellant filed a pro se supplemental brief.
PER CURIAM
Defendant Daniel A. Catalano appeals from a December 8,
2015 judgment of conviction, entered after a jury trial. The
jury found defendant guilty of third-degree fraudulent use of a
credit card, N.J.S.A. 2C:21-6(h), and fourth-degree credit card
theft, N.J.S.A. 2C:21-6(c)(1). The court imposed a five-year
term of imprisonment for the former and an eighteen-month
concurrent term for the latter offense. We affirm.
I
The pertinent evidence is as follows. In July 2014,
defendant's father, the victim of the crime, testified his
credit rating had inexplicably dropped. He obtained a copy of
his credit report, which revealed charges had been placed on a
Capital One credit card that had been sent to him but never
activated. Concerned, he telephoned Capital One and learned the
card had been activated from his home, and charges were put on
his card from March to May 2014. At the time, his wife,
daughter, and defendant, who is his son, were living in his
home; all three denied using the card.
The father contacted the local police department to report
the unauthorized use of his card. After conducting an
investigation, the police suspected defendant was the culprit.
Sergeant Paul Santucci testified six of the charges on the card
were money orders purchased through Western Union and sent to
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defendant, who picked up the money orders in various
municipalities in Monmouth County.
According to Western Union's records, the name of the
ostensible "sender" - the term used by Western Union - was the
father's. However, Santucci discovered the cell phone number
used by the alleged sender to contact Western Union and arrange
for money orders to be charged to the Capital One account, and
then sent to defendant, in fact belonged to defendant. Santucci
located the cell phone number in defendant's name using a
database he accessed at the police station.
One charge placed on the credit card in March 2014 was a
$272 payment toward services provided by Mark Melango, a bail
bondsman. Before addressing Melango's testimony, we discuss the
controversy over his anticipated testimony before trial, as well
as a comment made by a prospective juror during jury selection.
Before trial, the assistant prosecutor brought to the
court's attention she wished to introduce evidence of a
transaction between Melango and defendant. At the time of that
transaction, defendant was in jail. Defendant contracted with
Melango to provide him with the bail necessary to get him out of
jail. The State proffered defendant used the subject charge
card to pay for Melango's services, and gave Melango his cell
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phone number, a number that matched the one used by the party
who sent money orders to defendant through Western Union.
Although defendant allegedly used the credit card without
his father's permission to post bail, the State noted it was
not prosecuting defendant for the transaction involving Melango.
However, the State regarded defendant's transaction with Melango
as intrinsic to the offenses with which defendant was charged,
because this transaction revealed defendant was in possession of
and using the card around the same time charges were being
posted on the card for the money orders. Also, the cell phone
number defendant provided to Melango was the same cell phone
number used by the sender to purchase the money orders, showing
defendant sent the money orders to himself.
Defendant objected to the introduction of any evidence of
defendant's interaction with Melango, arguing such evidence
revealed defendant had engaged in a prior bad act, specifically,
that he used the credit card in his father's name to pay for
Melango's service without his father's authorization. The court
stated it initially considered the admissibility of the evidence
under N.J.R.E. 404(b), but then determined the subject evidence
was not "other crimes" evidence, rendering unnecessary an
analysis under N.J.R.E. 404(b).
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The court concluded the evidence arising out of defendant's
interaction with Melango was "intrinsic" to the charged crimes
and, because it was relevant and its prejudicial value not
substantially outweighed by the risk of causing undue prejudice,
see N.J.R.E. 403, the evidence was admissible. However, the
court granted defendant's request there could be no evidence
defendant had been in jail, or that Melango was a bail bondsman,
because of defendant's concern the identification of his
profession would suggest to the jury defendant used his services
to get out of jail.
We turn to the controversy over a prospective juror's
comments during jury selection. The comments were made during
the following exchange between the court and the prospective
juror:
THE COURT: Did you know anyone on the
witness list?
THE JUROR: Mr. Melango, is he a bail
bondsman?
THE COURT: He is from Neptune.
THE JUROR: If he's a –
THE COURT: You know him?
THE JUROR: Yeah.
THE COURT: Okay. Why don't we come to
sidebar?
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After the sidebar conference, the juror was excused by the
court. The sidebar conference was not recorded because the
voices were inaudible but, the following morning, the court
placed on the record defendant had asked for a mistrial on the
ground the juror's comments revealed Melango was a bail
bondsman; however, the court denied the motion.
Defendant again asked for a mistrial when the parties
assembled for another day of jury selection, maintaining all of
the potential jurors sitting in the court room were tainted by
the juror's comments. The court offered but defendant decided
against giving a curative instruction; defendant was concerned
an instruction would only highlight what the juror said. The
court then denied defendant's second motion for a mistrial,
providing the following reasons.
First, the court noted the juror's comments were not
damaging because
bail is just something under our court rules
that people post when they are accused of a
crime. . . . [T]here is no negative
inference they should draw as to his guilt
because he has been accused of a crime. We
take great pains during our initial
instructions to indicate the indictment is
not evidence. . . . So I don't think under
any situation that what was blurted out by
the potential juror is grounds for a
mistrial. I don't believe it prejudices the
defendant to that extent. That's number
one.
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The court then observed if the case were not tried at that
time, given the shortage of judges and the backlog of criminal
cases, defendant's matter might not be scheduled for trial again
for another ten months. The court stated it squeezed
defendant's case in for trial because defendant was in jail, but
"if [defendant] says . . . I'll wait [ten months] to go to
trial, I'll sit in jail happily, well, then, that's another
consideration I'll have to make but I haven't heard that. . . .
[But] I think the defendant is entitled to a speedy trial. I
don't feel he's been prejudiced by what's been said."
Returning to our summary of the pertinent evidence adduced
during trial, Melango's testimony was consistent with the
State's proffer. Through his testimony, it was established
defendant used the subject credit card in payment toward
Melango's services, and provided the incriminating cell phone
number to Melango. In addition, Melango testified that,
although he initially dealt with defendant over the phone,
defendant did come into his place of business to sign the credit
card receipt. At that time, Melango took a picture of
defendant. That picture was placed into evidence to provide
proof defendant was the person with whom Melango did business.
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Despite having a photograph to prove it was defendant with
whom Melango interacted, the assistant prosecutor asked Melango
if he could make an in-court identification of defendant. That
exchange was as follows:
PROSECUTOR: And do you see Daniel
Catalano in the courtroom here today?
MELANGO: Do I?
PROSECUTOR: Yes.
MELANGO: No. It might be him right
now but he looks different.
THE COURT: I'm sorry?
MELANGO: Looks like him right there.
On cross-examination, defense counsel asked Melango the
following: "Daniel Catalano was not physically in your place of
business when this transaction began. Right?" Melango
replied, "No. He was in jail." The court immediately delivered
the following instruction to the jury:
Ladies and gentlemen, whether or not he was
in jail at the time of this offense or this
incident here is of no moment. He's not
charged with anything dealing with this
particular incident. And if he was or not
in jail, again, reflects in no way on his
guilt or innocence in this matter. Okay. So
you are to disregard that response.
Again, the response was solicited through
the defense question. I'm sure [defense
counsel] didn't intend that to be the
response. It was the response. But you are
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to totally disregard it, and not, it should
not enter into your deliberations in any
way, shape, or form.
In addition, I was going to give you this
instruction when the witness was finished
but I'll give it to you now.
As you know, and will recall, when I read
the indictment to you, it mentioned
allegations involving Colts Neck, Marlboro,
and Middletown.
During this testimony you've heard that Mr.
Melango's place of business is Neptune.
[Defendant] is not charged with anything to
do with the executing of this agreement or
whatever occurred with Mr. Melango in
Neptune. He's not charged in that by way of
the indictment.
This information was only presented to you
intrinsically so the State could attempt to
prove to you that Mr. Catalano had used a
credit card which they are trying to match
up to the credit card that was allegedly
used in Colts Neck, Marlboro, and/or
Middletown. So that was the only purpose it
was presented.
So again whether or not he was in jail at
the time that his transaction occurred, this
transaction itself, you are not to consider
them in any way, shape, or form as to
whether or not he's a bad person or he was
guilty of the items that have been testified
to previously in which the State is alleging
occurred in other municipalities, Colts
Neck, Marlboro, and Middletown between March
20th, 2014 and May 5, 2014.
When delivering the final jury charge, the court stated:
Now, as I said to you during the testimony
of the State's witness, Mark Melango, and as
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noted in the indictment, Mr. Catalano is
charged in Counts 1 and 2 with events
allegedly occurring in Colts Neck, Marlboro,
and Middletown. The incident testified to
by Mr. Melango that allegedly occurred in
Neptune in March 2014 is not part of the
indictment. You are not to speculate why,
if at all, Mr. Catalano may have engaged the
services of Mr. Melango. Any speculation as
to whether this defendant has other troubles
he was dealing with during this time period
is just that, speculation, and should not
enter your deliberations.
This testimony was only allowed as intrinsic
evidence to aid the State in their attempt
to show Daniel Catalano had access to the
Capital One credit card and had the ability
to use it, utilize it, at the times and
locations noted in the indictment.
You are not to utilize this testimony for
any other purpose other than what I have
instructed you.
As previously stated, the jury convicted defendant of the
two charges with which he had been indicted.
II
On appeal, defendant asserts the following arguments:
POINT I – THE TRIAL COURT DEPRIVED MR.
CATALANO OF HIS RIGHTS TO DUE PROCESS AND A
FAIR TRIAL AND ABUSED ITS DISCRETION BY
FAILING TO DISMISS THE JURY PANEL.
POINT II – THE ADMISSION OF EVIDENCE OF MR.
CATALANO'S ALLEGED UNCHARGED TRANSACTION IN
NEPTUNE, NEW JERSEY, WITH MARK MELANGO
VIOLATED HIS RIGHT TO A FAIR TRIAL.
POINT III – THE TRIAL COURT'S JURY CHARGE ON
IDENTIFICATION WAS INADEQUATE AND
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INCOMPLETE, DEPRIVING MR. CATALANO OF HIS
RIGHTS TO DUE PROCESS AND A FAIR TRIAL.
POINT IV – THE TRIAL COURT COMMITTED
REVERSIBLE ERROR BY ADMITTING INTO EVIDENCE
HEARSAY FROM A POLICE DATABASE.
POINT V – THE TRIAL COURT ABUSED ITS
DISCRETION BY IMPOSING A MANIFESTLY
EXCESSIVE SENTENCE.
Defendant raised the following arguments in a supplemental
pro se brief:
POINT I – THE COURT COMMITTED REVERSIBLE
ERROR BY ALLOWING EVIDENCE OF UNCHARGED
CRIMES TO BE ADMITTED WITHOUT A LIMITING
INSTRUCTION OR HEARING.
POINT II – THE CONVICTION MUST BE REVERSED
DUE TO THE COURT'S REFUSAL TO SUBMIT
TERRITORIAL JURISDICTION AS AN ELEMENT OF
THE OFFENSE TO BE DECIDED BY THE JUDGE.
POINT III – THE ADMISSION OF EVIDENCE OF A
CRIME; THE GRAND JURY SAW, AND DECLINED TO
INDICT VIOLATED DEFENDANT'S RIGHT TO A FAIR
TRIAL.
POINT IV – IT IS UNKNOWN IF THE JURY WAS
UNANIMOUS; DUE TO A STRUCTURAL ERROR IN THE
JURY CHARGES.
POINT V – REPEATED INSTANCES OF
PROSECUTORIAL MISCONDUCT DENIED THE
DEFENDANT'S RIGHT TO A FAIR TRIAL.
We have reviewed the arguments in light of the record and
applicable law. We are not persuaded.
A
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Defendant contends he was denied his right to a fair trial
when the trial court failed to dismiss the jury panel and
declare a mistrial after the prospective juror asked the court
if Melango were a bail bondsman, followed by her statement she
knew him. Defendant argues the juror's comment was tantamount
to confirming, in the presence of the full jury panel, Melango
was in fact a bail bondsman.
"A defendant's right to be tried before an impartial jury
is one of the most basic guarantees of a fair trial." State v.
Loftin, 191 N.J. 172, 187 (2007). That right "includes the
right to have the jury decide the case based solely on the
evidence presented at trial, free from the taint of outside
influences and extraneous matters." State v. R.D., 169 N.J.
551, 557 (2001). However, even if the court determines a jury
"has been exposed to [an] outside influence," a "new trial . . .
is not necessary in every instance." Id. at 559. "Ultimately,
the trial court is in the best position to determine whether the
jury has been tainted. That determination requires the trial
court to consider the gravity of the extraneous information in
relation to the case, and the overall impact of the matter on
the fairness of the proceedings." Ibid.
"We traditionally have accorded trial courts deference in
exercising control over matters pertaining to the jury." Id. at
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559-60. We review the disposition of a motion for a mistrial
for an abuse of discretion. Id. at 559. "Application of that
standard respects the trial court's unique perspective." Ibid.
"[T]he test for determining whether a new trial will be
granted because [of] . . . the intrusion of irregular
influences is whether such matters could have a tendency to
influence the jury in arriving at its verdict in a manner
inconsistent with the legal proofs." State v. Jenkins, 182 N.J.
112, 131 (2004) (quoting Panko v. Flintkote Co., 7 N.J. 55, 61
(1951)). Thus, a new trial is required where the irregularity
has the capacity to influence the outcome of the trial; a
showing of actual prejudice is not required. See R.D., supra,
169 N.J. at 558. Moreover, "it is presumed the irregularity had
the capacity to influence, 'unless it has affirmatively been
shown [by the State that] it does not.'" State v. Wormley, 305
N.J. Super. 57, 69 (App. Div. 1997) (alteration in original)
(quoting State v. Grant, 254 N.J. Super. 571, 588 (App. Div.
1992)), certif. denied, 154 N.J. 607 (1998)).
Applying these principles, we are unconvinced defendant was
prejudiced by the juror's comments, and conclude the trial court
did not abuse its discretion in denying his motion for a
mistrial and the convening of a new jury pool. The mere mention
one of the witnesses was a bail bondsman did not have a tendency
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to influence the jury in arriving at its verdict in a manner
inconsistent with the evidence. Even if the jury surmised
defendant contracted with Melango to obtain bail, as stated by
the trial court, there is no negative inference to be drawn
simply because one has been accused of a crime, a point stressed
in the court's initial instructions to the jury when it
emphasized the indictment was not evidence of defendant's guilt
of the charges.
In addition, when Melango testified defendant was in jail
the first time he communicated with him, the court delivered a
prompt and forceful curative instruction to ameliorate the
effect of Melango's comment, and jurors are presumed to follow a
court's instructions. See State v. Martini, 187 N.J. 469, 477
(2006), cert. denied, 549 U.S. 1223, 127 S. Ct. 1285, 167 L. Ed.
2d 104 (2007).
Among other things, the court instructed the jury to
disregard Melango's testimony, that such testimony was not to
enter into its deliberations in "any way, shape, or form." The
court also pointed out that whether defendant was or was not in
jail did not reflect upon his guilt or innocence in the matter
before the jury. Of course, this instruction equally applied to
any assumption Melango was a bail bondsman. That is, defendant
was not concerned Melango was a bail bondsman per se. Defendant
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was concerned his association with a bail bondsman would suggest
he contacted Melango because he was in jail.
Accordingly, we are satisfied the juror's remarks could not
have influenced the outcome in this matter. Even if the remarks
had such a tendency, the court's strong curative instruction
appropriately guided the jury from using such evidence during
its deliberations.
B
Defendant contends evidence of his unauthorized use of the
credit card in his transaction with Melango was a prior bad act
that negatively tainted the jury's impression of him, violating
his right to a fair trial and requiring the reversal of his
convictions. Defendant's argument warrants little discussion.
Evidence of defendant's interaction with Melango was "intrinsic"
to the charged crimes and admissible.
"[E]vidence is intrinsic if it 'directly proves' the
charged offense." State v. Rose, 206 N.J. 141, 180 (2011)
(quoting United States v. Green, 617 F.3d 233, 248 (3d Cir.
2010)). In Rose, the Court instructed 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), or whether it is evidence
intrinsic to the charged crime, and thus need only satisfy the
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evidence rules relating to relevancy, most importantly
[N.J.R.E.] 403." Id. at 179.
Here, the court found the evidence intrinsic, relevant, and
its probative value not substantially outweighed by the risk of
undue prejudice. The challenged testimony was admissible
because it related directly, and was intrinsic to, the crimes
for which defendant was being tried. The father testified he
never used the Capital One card; in fact, he claimed he had
never even activated the card. The transaction with Melango
exposed the fact defendant was in possession of and using the
card during the time period the unauthorized charges were placed
on the card.
The transaction also confirmed defendant's cell phone
number, enabling the State to tie defendant to the Western Union
charges placed on the card. Additionally, the photograph taken
at the time defendant signed a contract with Melango challenged
the asserted mistaken identity defense and claim a third party
was placing the unauthorized charges on the card. We see no
error in the introduction of the challenged evidence.
Moreover, the court properly instructed the jury on the
limited use of this evidence. "In setting forth the prohibited
and permitted purposes of the evidence the trial court must
include within the instruction 'sufficient reference to the
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factual context of the case to enable the jury to comprehend and
appreciate the fine distinction to which it is required to
adhere.'" State v. Hernandez, 170 N.J. 106, 131 (2001) (quoting
State v. Stevens, 115 N.J. 289, 304 (1989)). The court
emphasized the evidence of defendant's interactions with Melango
was introduced for a specific, narrow purpose. The court
informed the jury the evidence was only allowed as intrinsic
evidence to aid the State in its attempt to show, among other
things, defendant had access to and the ability to use the
Capital One credit card. The jury was further instructed it
could not utilize Melango's testimony for any purpose other than
what the court directed.
C
Defendant maintains the crux of the State's case was
whether he was the one who placed the unauthorized charges on
the credit card in his father's name and, thus, the case turns
on Melango's identification of defendant. The State concedes
Melango's in-court identification of defendant was equivocal,
but notes it did not rely upon this identification to establish
defendant was the individual with whom Melango interacted. In
addition to Melango's testimony that the person with whom he
dealt indentified himself as Daniel Catalano and affixed his
signature to their contract and the credit card receipt, the
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State relied upon the photograph Melango took of defendant when
defendant appeared in his office. That photograph was put into
evidence, allowing the jury to decide if the person in the
picture was defendant.
For the first time on appeal, defendant argues the trial
court failed to properly instruct the jury on how to evaluate
the identification evidence offered by Melango. Although the
court did provide an instruction on identification, defendant
claims the court erred because it did not issue to the jurors
Model Jury Charge (Criminal), "Identification: In-Court and Out-
of-Court Identifications" (2012).1 For simplicity and for the
purpose of this opinion only, we refer to this charge as the
MJC.
In our view, the MJC would not have been at all suitable
for this case. The MJC was implemented in light of the Supreme
Court's decision in State v. Henderson, 208 N.J. 208 (2011).
In Henderson, a defendant challenged an identification on the
ground police officers had unduly influenced the eyewitness.
Id. at 217. The eyewitness initially expressed doubt about the
identity of the perpetrator, but was able to confidently
identify the defendant after meeting with investigators. Id. at
1
Because of the length of this charge, we do not reproduce it
here.
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223-24. The Court identified numerous factors that can affect
the ability of a witness to remember and identify perpetrators
of crimes, resulting in misidentifications, and ordered an
amplified, comprehensive jury charge. Id. at 298-99. The MJC
was then drafted and adopted by the Court.
In the MJC, the court instructs the jury to consider the
eyewitness's attentiveness and opportunity to view the
perpetrator, as well as the following factors: the witness's
stress, the duration of observations, focus on weapons,
distance, lighting, intoxication, and disguises or changed
appearance. See Model Jury Charge (Criminal), supra, at 3-5.
The jury is also instructed about the potential impact of the
witness's prior description of the person identified, the
witness's confidence and accuracy, the time that elapsed between
the event and the identification, cross-racial effects, and the
impact of other's opinions. Id. at 5.
Here, such factors have nothing to do with a jury's
examination of a photograph to determine whether it depicts the
person identified in court as defendant. Memory is not in
issue. See Henderson, supra, 208 N.J. at 245-76. Nor is there
a need to explain to the jury how the memory works. See id. at
273-74. A jury reviewing a photograph is not under stress;
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distracted by weapons; or hampered by shortness of time,
distance, and poor lighting.
Here, the jury was capable of assessing the evidence
without the instructions contained within the MJC. The jury's
in-court comparison of the photograph to defendant was not an
identification procedure subject to Henderson. We therefore
conclude the omission of such an instruction was not "clearly
capable of producing an unjust result." R. 2:10-2.
D
Defendant next contends the trial court committed
reversible error by admitting into evidence hearsay from the
police database. Specifically, defendant argues it was error to
permit Santucci to testify the database set forth defendant's
cell phone number. The State concedes the evidence was
inadmissible hearsay, but notes evidence of defendant's cell
phone number was also supplied by Melango, who testified
defendant told him his cell phone number.
We are satisfied the error was, beyond a reasonable doubt,
harmless, because the evidence from the database was merely
cumulative to evidence that was properly admitted and did not
affect the outcome. See State v. Carter, 91 N.J. 86, 114
(1982).
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We have carefully examined defendant's remaining arguments
and conclude they are without sufficient merit to warrant
discussion in a written opinion. R. 2:11-3(e)(2).
Affirmed.
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