NOT FOR PUBLICATION WITHOUT THE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-3169-16T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
JOHN DEROSA, a/k/a JOHNNY
BO DEROSA, JOHNNIE B.
DEROSA, JOHN N. DEROSA,
JOHNNY DEROSA, SELVIO
URIBE, JOHNNYBOY, JOHNIE
DEROSA, and NICHOLAS
DEROSAJOHN,
Defendant-Appellant.
_____________________________
Argued January 30, 2019 – Decided July 3, 2019
Before Judges Koblitz, Ostrer and Currier.
On appeal from the Superior Court of New Jersey, Law
Division, Hudson County, Indictment No. 10-06-1170.
John Walter Douard, Assistant Deputy Public
Defender, argued the cause for appellant (Joseph E.
Krakora, Public Defender, attorney; John Walter
Douard, of counsel and on the briefs).
Charles C. Cho, Assistant Prosecutor, argued the cause
for respondent (Esther Suarez, Hudson County
Prosecutor, attorney; Charles C. Cho, on the brief).
Appellant filed a pro se supplemental brief.
PER CURIAM
Defendant John DeRosa appeals from his conviction of murder; felony
murder; armed robbery; unlawful possession of a weapon; and possession of a
weapon for an unlawful purpose. Defendant argues the court improperly
admitted his girlfriend’s statement, which she made while addicted to heroin and
could not recall at trial, hampering defendant's ability to cross-examine her.
Defendant also argues the court should have dismissed the indictment because
the State failed to preserve a segment of surveillance footage. In a pro se brief,
defendant challenges several evidentiary rulings. Finally, defendant contends
his life sentence was excessive. Having reviewed defendant's arguments in light
of the record and applicable principles of law, we affirm.
I.
We discern the following facts from the record. On the morning of August
18, 2009, defendant and his two co-defendants, Edmir Sokoli and Elvis
Feratovic, robbed a jewelry store in Kearny that belonged to Honorio and Sylvia
Egoavil, husband and wife. In preparing for the robbery, defendants planned to
A-3169-16T4
2
bind the owners at gunpoint, steal the jewelry, and exit through the back of the
store, where Feratovic would wait in his car. Sokoli testified that the morning
of the robbery, Feratovic drove him and defendant around the block "once or
twice . . . [m]aybe three times" until they saw Honorio step out for some coffee.
Sokoli and defendant entered the store, disguised in wigs and fake beards and
mustaches. They were surprised to find Sylvia was not alone. Her son Xavier
had come to help his parents and stood with his mother in the back of the store.
Defendant warned them to stay put as Sokoli stuffed jewelry into a bag. Xavier
moved towards defendant; defendant shot him four times, striking him in the
head, torso, and leg. Xavier died on the floor.
Questioned a week later, defendant's then-girlfriend, Larissa Fuzia,
provided an alibi for defendant. Shortly afterwards, Fuzia entered a drug-
rehabilitation program to treat her heroin addiction. Upon further questioning
during and after her rehabilitation, Fuzia admitted defendant had come home on
the day of the crime and told her he shot someone during a robbery that "went
bad." He also told her to dispose of a bag in their apartment; the bag contained
the remnants of disguise props – wigs, beards, mustaches, and glue. Fuzia
testified that, three days before the robbery-homicide, defendant and she had
A-3169-16T4
3
purchased the disguises from a New York City magic and costume store, which
she named.
A June 15, 2010 indictment principally charged defendant with first-
degree murder, felony murder, and robbery while armed with a deadly weapon;
and second-degree unlawful possession of a weapon and possession of a weapon
for an unlawful purpose. The court denied defendant's motion to dismiss the
indictment on grounds of prosecutorial misconduct before the grand jury.
The State produced surveillance footage from the morning of the robbery,
which it copied from the hard drive of a neighboring store. Though the hard
drive reportedly contained two months of surveillance, the State disclosed only
twenty minutes of it, from 8:45 to 9:05 a.m. on the day of the crimes. The State
stipulated that the rest of the video was lost or misplaced. The State maintains
that the preserved segment showed Feratovic's car circle the block three times,
the last time at 8:58. 1 It then shows two unidentifiable individuals enter the
store before the robbery, which Sylvia said occurred at about 9:00 a.m.
Before trial, the court denied defendant's motion to compel the production
of the missing video, concluding that the court could not compel production of
something the State did not possess. However, the court held that defendant
1
The record on appeal does not include the video excerpt played for the jury.
A-3169-16T4
4
would be entitled to an adverse inference if he established that the State
possessed the video and lost it.
New counsel for defendant moved to dismiss the indictment before a
second judge, who would ultimately preside over the trial, arguing the missing
footage would have helped exculpate defendant by contradicting Sokoli's
testimony. The trial court denied the motion. Relying on State v. Serret, 198
N.J. Super. 21, 26 (App. Div. 1984), and State v. Casele, 198 N.J. Super 462,
469-70 (App. Div. 1985), the court held that defendant had to show bad faith by
the State in failing to preserve the potentially exculpatory footage. However,
the judge affirmed that he would issue an adverse-inference charge. Defendant
also moved pretrial to suppress Fuzia's statements, claiming they lacked
reliability, which the trial court denied.
At trial, consistent with the court's ruling, the State introduced the video
and the court instructed the jury that it could infer that the missing footage would
have adversely affected the State’s case. Xavier's mother gave a physical
description of the shooter, but did not make an in-court identification. Feratovic
testified that defendant planned the robbery and was armed. Sokoli testified he
saw defendant shoot Xavier. At least one bystander also recalled seeing a man
A-3169-16T4
5
run out of the jewelry store that morning, holding a handgun, who matched
defendant's description.
Fuzia testified, but she could not recall any detail of her statements to the
police or when she gave them, despite counsel's attempts to refresh her memory.
After an N.J.R.E. 104 hearing, the trial court held her testimony admissible as
"past recollection recorded" under N.J.R.E. 803(c)(5). Over defendant's
objection, the court instructed the jury to determine if defendant in fact made
the statements that Fuzia attributed to him, and to consider "the circumstances
and facts as to how the statement was made, as well as all other evidence in this
case relating to this issue."
To corroborate Fuzia's account of the prop purchase, the State introduced,
through a former store employee, a photocopied sales receipt that listed "hair
goods" and makeup for $289.61 – Fuzia had said the cost was between $250 and
$290 – but did not identify the purchaser or the specific items bought. The
receipt also indicated that the purchase was made on Sunday, August 16,
although Fuzia told the police she and defendant bought the items on Saturday,
August 15, 2009. The employee verified that he executed the sale. Though the
receipt did not specify the hair goods and makeup sold, the employee testified
that the number of items and their prices fit with a purchase of two wigs, two
A-3169-16T4
6
fake beards, two mustaches, adhesive gum and adhesive gum remover. On
cross-examination, the employee conceded that he could not be certain about
what "hair goods" or "makeup" included, and that the store owner searched for
a receipt that could have matched items the detectives had specified.
Also at trial, the medical examiner, Dr. Lilavois, testified about the
injuries to the victim's body – which included gunshots to his head, chest, and
leg – based on contemporaneous photographs of the body and a report the
previous medical examiner, Dr. Blumenfeld, prepared. Dr. Lilavois stated that
his testimony reflected his own independent conclusions based on those
materials.
Before trial, Dr. Lilavois submitted a report stating simply that, based on
his own independent review of the photos and report, he concurred with Dr.
Blumenfeld's conclusions. Defendant argued, citing State v. Bass, 224 N.J. 285
(2016), that the Confrontation Clause barred this statement or the reading of Dr.
Blumenfeld's report at trial. However, the prosecutor assured the court he would
introduce neither written statement and would instead rely solely on Dr.
Lilavois's oral testimony. The trial judge then denied defendant's application.
Defense counsel did not object at any point during the State's direct examination
of Dr. Lilavois.
A-3169-16T4
7
Defendant did not testify. The defense called several witnesses to raise
doubts about the appearance of the two robbers seen fleeing the jewelry store.
The defendant also called a witness to establish that, at the behest of the
prosecutor's office, Sokoli and Feratovic were incarcerated in the same cell for
an extended period of time, suggesting that they had ample time to coordinate
their testimony. The defense theory was that Sokoli, Feratovic and Fuzia lied
out of self-interest. In summation, the defense highlighted inconsistencies in
their testimony.
The jury convicted defendant on all counts. At sentencing, the trial judge
noted that defendant had prior convictions of murder and other crimes.
Concluding that defendant had "an absolute disregard for the law," the judge
sentenced him to a life term on the murder count and to concurrent terms of
twenty years for armed robbery and ten years for unlawful possession of a
weapon. Pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2(d)(1),
defendant's parole ineligibility period was sixty-three years and nine months.
Defendant was fifty-two years old when sentenced.
In his counseled appellate brief, defendant raises the following points:
POINT I
DEROSA WAS DENIED A FAIR TRIAL WHEN THE
JUDGE ALLOWED THE PROSECUTOR TO READ
A-3169-16T4
8
INTO THE RECORD FUZIA'S UNRELIABLE
STATEMENTS, MADE UNDER DURESS WHILE IN
A DRUG REHAB PROGRAM, DETAILS OF WHICH
SHE WAS UNABLE TO RECALL, THEREBY
PREVENTING ANY CROSS-EXAMINATION. U.S.
CONST. AMEND. VI, XIV; N.J. CONST. ART. 1, ¶¶
1, 10.
POINT II
THE STATE'S LOSS OR DESTRUCTION OF
SURVEILLANCE FOOTAGE OF THE CRIME
SCENE BEFORE AND AFTER THE ROBBERY/
MURDER CONTAINING POTENTIALLY
EXCLUPATORY [sic] FOOTAGE REQUIRES
REVERSAL OF DEROSA'S CONVICTIONS.
A. Because DeRosa's Due Process Rights Were
Violated, the Court Erred in Denying His Motion
to Dismiss the Indictment.
B. The Jury Instruction Provided by the Court Was
Insufficient to Cure the Harm Caused by the
Discovery Violation, Requiring Reversal and a
Remand for a New Trial.
POINT III
THE AGGREGATE TERM OF LIFE, WITH 63 3/4
YEARS WITHOUT PAROLE, IS EXCESSIVE.
In a supplemental pro se brief, defendant raises the following additional
points:
A-3169-16T4
9
POINT I
THE JUDGE ERRED BY NOT DISMISSING THE
INDICTMENT BASED ON IMPROPER
PROSECUTORIAL MISCONDUCT.
a) The Prosecutor Failed to Present Exculpatory
Evidence to the Grand Jury That Directly
Negated Guilt of the Accused and was Clearly
Exculpatory.
b) The Prosecutor Wrongly Caused Two
Cooperating Witnesses to Share the Same Cell
for Seven Years While This Case Was Pending
Trial.
c) The Prosecutor Improperly Commented to the
Grand Jury About Defendant's Prior Conviction
and Sentence for Homicide.
POINT II
THE TRIAL COURT ERRED BY ALLOWING THE
ABRACADABRA COSTUME STORE RECEIPT
INTO EVIDENCE, VIOLATING THE NEW JERSEY
RULES OF EVIDENCE.
POINT III
THE TRIAL COURT ERRED IN DENYING
DEFENDANT'S EX-PARTE APPLICATION FOR A
PRIVATE INVESTIGATOR AFFORDED TO
CRIMINAL DEFENDANT'S [sic] BY THE SIXTH
AMENDMENT OF THE U.S. CONSTITUTION AND
BY ART. 1, PARA. 10 OF THE NEW JERSEY
CONSTITUTION.
A-3169-16T4
10
POINT IV
THE TRIAL JUDGE ERRED BY ALLOWING DR.
LILAVOIS TO TESTIFY TO THE CONTENTS OF
AN AUTOPSY REPORT OF ANOTHER MEDICAL
EXAMINER, THUS VIOLATING DEFENDANT'S
CONFRONTATION RIGHTS UNDER THE SIXTH
AMENDMENT OF THE UNITED STATES
CONSTITUTION AND ART. I, PARA. 10 OF THE
NEW JERSEY CONSTITUTION.
POINT V
THE TRIAL JUDGE ERRED BY GIVING
IMPROPER INSTRUCTIONS ON THE VERDICT
SHEET, WHICH MISLEAD [sic] THE JURY INTO
RENDERING GUILTY VERDICTS FOR FIRST AND
SECOND DEGREE ROBBERY, ON A SINGLE
COUNT OF ROBBERY IN THE INDICTMENT,
VIOLATING DEFENDANT'S DOUBLE JEOPARDY
PROTECTIONS UNDER THE FEDERAL AND
STATE CONSTITUTIONS. (Not Raised Below).
II.
A.
Defendant first argues that the trial court erred in admitting Fuzia's
incriminating statement because its prejudicial effect substantially outweighed
its probative value. He argues that Fuzia's memory loss prevented him from
challenging her statement effectively on cross-examination, such as by eliciting
that she may have felt pressure to comply with the police because of her own
legal troubles. Defendant points out that at the end of her police interview, Fuzia
A-3169-16T4
11
asked the interviewer if she had "done good" by giving the investigators "what
[they] needed." Defendant also argues Fuzia's statements were merely
cumulative because the co-defendants, the prop store employee, and the store's
sales receipt together presented the State's narrative of the robbery's planning
and execution. Finally, defendant claims the judge's instruction did not cure the
harm because it did not refer specifically to Fuzia's incriminating statement, and
did not stress to the jury that Fuzia's memory loss prevented defendant from
cross-examining her effectively.
We review evidentiary rulings for abuse of discretion and will reverse
only upon finding a "manifest denial of justice." State v. Cole, 229 N.J. 430,
449 (2017) (quoting State v. Carter, 91 N.J. 86, 106 (1982)). A trial court may
exclude relevant evidence whose "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." N.J.R.E. 403. The trial court, as gatekeeper, "is in the best position
to engage in th[e] [Rule 403] balancing process." State v. Ramseur, 106 N.J.
123, 266 (1987).
Evidence has significant probative value when no other evidence can
prove the same fact. See State v. Long, 173 N.J. 138, 164-65 (2002) (holding
A-3169-16T4
12
murder defendant's statement had great probative value as the only evidence
regarding motive). Conversely, evidence loses probative value the more
redundant it becomes. See State v. Johnson, 120 N.J. 263, 297-99 (1990)
(finding little probative value in numerous photos of bloody victims where
medical examiner already testified about extent of assault); State v. Taylor, 350
N.J. Super. 20, 37 (App. Div. 2002) (finding little probative value in video of
victim's final minutes showing dying declaration where several other witnesses
confirmed the declaration).
The court may allow the jury to hear a witness's past recorded statement
if the witness, due to "impaired memory," State v. Gore, 205 N.J. 363, 376
(2011) (quoting State v. Williams, 226 N.J. Super. 94, 103 (App. Div. 1988)),
cannot now "testify fully and accurately" about the statement, N.J.R.E.
803(c)(5), so long as the statement:
(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, unless the
circumstances indicate that the statement is not
trustworthy.
[N.J.R.E. 803(c)(5).]
A-3169-16T4
13
"[T]he portion the witness does not remember may be read into evidence but
shall not be introduced as an exhibit over objection." Ibid.
We shall not disturb the trial court's decision to admit Fuzia's September
28 statement. The court did not abuse its discretion in finding that the
statement's prejudicial effect, if any, did not substantially outweigh its probative
value. While the statement's credibility could be challenged due to Fuzia's
heroin addiction at the time, her initial exculpatory statement suffered from the
same defect. The jury heard both statements, as well as the circumstances in
which Fuzia made them, and could determine whether to credit either one. The
court aided the jury in this task by instructing them to regard Fuzia's statements
with the appropriate wariness given the circumstances in which she made them.
Defendant claims that Fuzia was under duress to give the officers the
statement they "needed" as a result of her own legal problems. This claim, which
defendant argued in closing, goes to the credibility of Fuzia's statement, not its
admissibility. Finally, though defendant stresses his inability to cross-examine
Fuzia effectively because of her memory impairment, N.J.R.E. 803(c)(5)
explicitly permits the recorded statement of just such a witness where the
statement appears trustworthy.
A-3169-16T4
14
Nor was Fuzia's statement cumulative. It bolstered the State's case by
recanting her first, exculpatory statement and corroborating the testimony of the
co-defendants, who defendant claimed falsely named him as the shooter. The
statement also provided another perspective of the robbery-homicide – that of
defendant's own former girlfriend – and fleshed out the State's narrative with
details of defendant's purchase of disguises and his attempt to sell the jewelry.
Therefore, the trial court did not err in admitting Fuzia's statement.
B.
Defendant also contends that the State's loss or misplacement of
surveillance footage deprived him his right to due process by preventing him
from presenting a complete defense. He maintains that the missing segment may
have weakened the State's case by showing that Sokoli testified falsely about
Feratovic driving him and defendant around the block before Sokoli and
defendant entered the jewelry store. Defendant urges us, as a matter of State
constitutional interpretation, to dispense with the requirement, established in
Arizona v. Youngblood, 488 U.S. 51, 58 (1988), that a defendant must prove the
police's bad faith in failing to preserve evidence that was only potentially
exculpatory. "Without bad faith on the part of the State, 'failure to preserve
potentially useful evidence does not constitute a denial of due process of law.'"
A-3169-16T4
15
George v. City of Newark, 384 N.J. Super. 232, 243 (App. Div. 2006) (quoting
Youngblood, 488 U.S. at 57). 2
Instead of the "bad faith" standard, defendant advocates a "balancing test"
that treats the likelihood of bad faith as one factor to be weighed against the
potential for prejudice. In support of that standard, defendant relies on pre-
Youngblood decisions of our court, out-of-state decisions and academic
commentators. Defendant also finds support for his position in our Supreme
Court's rejection of the "good faith exception," adopted by the United States
Supreme Court, to the exclusionary rule for illegal searches and seizures. See
State v. Novembrino, 105 N.J. 95, 158 (1987). Alternatively, defendant argues
the State recklessly lost the footage and that recklessness amounts to bad faith.
Finally, he contends that the trial court’s adverse-inference instruction failed to
remedy the prejudice resulting from the loss of evidence.
Reviewing this legal question de novo, we decline to jettison the bad faith
requirement. We recognize the cogent critiques of the "bad faith" test, beginning
with the concurring and dissenting justices in Youngblood and including those
2
By contrast, loss or destruction of evidence with apparent exculpatory value,
even in good faith, violates due process if the evidence was material to guilt or
punishment. Brady v. Maryland, 373 U.S. 83, 87 (1963); State v. Knight, 145
N.J. 233, 246 (1996).
A-3169-16T4
16
of several of our sister states' courts and of academic commentators. See
Youngblood, 488 U.S. at 60-61 (Stevens, J., concurring in the judgment)
(finding the majority's rule too broad because "there may well be cases in which
the defendant is unable to prove that the State acted in bad faith but in which the
loss or destruction of evidence is nonetheless so critical to the defense as to
make a criminal trial fundamentally unfair"); id. at 61; (Blackmun, J.,
dissenting) (arguing that the majority undermines a criminal defendant's right to
"a fair trial, not merely a 'good faith' try at a fair trial"); see also State v.
Tiedemann, 162 P.3d 1106, 1117 (Utah 2007); State v. Ferguson, 2 S.W.3d 912,
917 (Tenn. 1999); State v. Morales, 657 A.2d 585, 593 (Conn. 1995); State v.
Osakalumi, 461 S.E.2d 504, 512 (W. Va. 1995); State v. Delisle, 648 A.2d 632,
642-43 (Vt. 1994); Commonwealth v. Henderson, 582 N.E.2d 496, 497 (Mass.
1991); Hammond v. State, 569 A.2d 81, 87 (Del. 1989); Norman C. Bay, Old
Blood, Bad Blood, and Youngblood: Due Process, Lost Evidence, and the Limits
of Bad Faith, 86 Washington U. L. Rev., 241, 278-96 (2008); Matthew H.
Lembke, Note, The Role of Police Culpability in Leon and Youngblood, 76 Va.
L. Rev. 1213, 1237-41 (1990).
However, our Supreme Court followed the Youngblood standard in State
v. Marshall, 123 N.J. 1, 109 (1991), without any indication that a different test
A-3169-16T4
17
would govern a due process claim under our State's Constitution. On the basis
of that decision, we have declined to follow other jurisdictions that have
determined that proof of bad faith is not required by their state constitutions.
State v. Mustaro, 411 N.J. Super. 91, 103 n.4 (App. Div. 2009) (declining to
follow State v. Johnson, 951 A.2d 1257, 1284 (Conn. 2008)); see also State v.
Richardson, 452 N.J. Super. 124, 140 (App. Div. 2017) (stating that our Supreme
Court adheres to Youngblood). We will not infer a "departure from controlling
precedent" absent "an unmistakable" signal from the Supreme Court, State v.
Hicks, 283 N.J. Super. 301, 308 (App. Div. 1995), recognizing that any such
"departure should be undertaken 'by the court of last resort, and not by the
Appellate Division,'" In re State ex rel. A.C., 115 N.J. Super. 77, 84 (App. Div.
1971).
In State v. Hollander, 201 N.J. Super. 453, 479 (App. Div. 1985), which
we decided before Youngblood or Marshall, we identified three factors at play
in the case law that determined whether the "suppression, loss or destruction of
physical evidence" violated the right to due process. They were: "(1) whether
there was bad faith or connivance on the part of the government; (2) whether the
evidence suppressed, lost or destroyed was sufficiently material to the defense ;
[and] (3) whether defendant was prejudiced by the loss or destruction of the
A-3169-16T4
18
evidence." Ibid. (citations omitted). We have reiterated these factors since.
See, e.g., George, 384 N.J. Super. at 243; State v. Dreher, 302 N.J. Super. 408,
483 (App. Div. 1997); overruled on other grounds by State v. Brown, 190 N.J.
144, 159 n.1 (2007).
Even if that multi-factor formulation creates some tension with
Youngblood, it offers no refuge for defendant. In Dreher, though we cited these
factors, we clarified that, "[i]n the absence of bad faith, relief should be granted
to a defendant only where there is a 'showing of manifest prejudice or harm'
arising from the failure to preserve evidence." 302 N.J. Super. at 489 (quoting
DeVitis v. N.J. Racing Comm'n, 202 N.J. Super. 484, 494 (App. Div. 1985)).
Such manifest prejudice may result from the loss of evidence that might have
challenged an essential element of the State's case, such as a sample of semen
that could exclude a defendant as the perpetrator of a sexual assault. See
Youngblood, 488 U.S. at 69 (Blackmun, J., dissenting) (arguing that a "court
should focus on the type of evidence, the possibility it might prove exculpatory,
and the existence of other evidence going to the same point of contention in
determining whether the failure to preserve the evidence in question violated
due process").
A-3169-16T4
19
The missing recording in this case is not that type of evidence.
Conceivably, it could serve to impeach the co-defendant, who claimed he circled
the jewelry store block with defendant. Cf. United States v. Bagley, 473 U.S.
667, 676 (1985) (applying Brady to "[i]mpeachment evidence . . . as well as
exculpatory evidence"). However, it was not "sufficiently material to the
defense" such that its loss caused great prejudice. See Hollander, 201 N.J.
Super. at 479.
Notably, in argument to the trial court, defense counsel questioned
whether the produced video segment confirmed Sokoli's testimony that the three
cohorts circled the store as many as three times shortly before the robbery. Both
defense counsel and the prosecutor, in summation, focused on the recorded
instance of Feratovic's car passing the store at 8:58 a.m. Defense counsel
suggested that the missing recording may have shown that Sokoli and Feratovic
circled the store earlier in the morning, before Feratovic picked up defendant,
discrediting Sokoli and demonstrating that Sokoli and Feratovic may have acted
without defendant. However, the prosecutor, recalling the video evidence for
the jury, said that the recording in evidence showed Feratovic pass the jewelry
store three times, at 8:53, at a few seconds before 8:55, and then at 8:58. If true,
that would corroborate Sokoli's testimony about the number of times all three
A-3169-16T4
20
circled the block immediately before the robbery. In sum, the lost evidence
would neither exculpate defendant nor rebut the other substantial evidence of
guilt.
Alternatively, defendant contends that the State's loss of the recording was
so reckless that it amounted to bad faith. There is some authority for the
proposition that prosecutorial recklessness in the preservation of evidence may
constitute bad faith. See United States v. Yevakpor, 419 F. Supp. 2d. 242, 246,
252 (N.D.N.Y. 2006) (finding bad faith where the government deleted portions
of surveillance footage because "it was not an inadvertent failure . . . to preserve,
but an affirmative order . . . to only preserve the selected three minutes of tape
knowing that the subject of the video was to face criminal proceedings," despite
the "routine" nature of the erasure); State v. Langanella, 144 N.J. Super. 268,
283 (App. Div. 1976) (stating, in dictum, that "egregious carelessness or
prosecutorial excess tantamount to suppression" may result in a deprivation of
due process). However, the record does not reflect that recklessness – as
opposed to negligence – caused the disappearance of the disk onto which the
neighboring store's surveillance footage was stored.
As for the adverse-inference charge, defendant claims the court did not
adequately cure the harm caused by the missing footage because the court
A-3169-16T4
21
merely stated that the jury was permitted to make an adverse inference, instead
of ordering it to do so. However, in the charge conference, defense counsel
conceded the propriety of a permissive adverse-inference instruction and
suggested language for the court consistent with that position. Having invited
the court's instruction, defendant may not argue now that the instruction was
flawed, absent a showing of an error "so egregious as to 'cut mortally into his
substantive rights.'" Ramseur, 106 N.J. at 282 (quoting State v. Harper, 128 N.J.
Super. 270, 277 (App. Div. 1974)). No error, let alone one so egregious,
occurred here, as defendant provides no New Jersey authority for a "mandatory"
adverse inference, and we have found none. Even where the State intentionally
destroyed evidence, our Supreme Court approved a permissive adverse-
inference charge. State v. Dabas, 215 N.J. 114, 141 (2013) (approving
permissive adverse-inference charge in murder trial); see also Richardson, 452
N.J. Super. at 140 n.8 (noting that "the instruction outlined in Dabas . . . informs
the jury of the State's obligation to preserve evidence, but leaves it to the jury to
determine whether to draw an adverse inference").
III.
Defendant claims the life sentence without parole eligibility for 63 .75
years is excessive because it effectively ensures he will never become eligible
A-3169-16T4
22
for parole, as he is now close to sixty years old. Defendant argues the court
failed to be "mindful of the real-time consequences of NERA." See State v.
Marinez, 370 N.J. Super 49, 58 (App. Div. 2004). We disagree.
The trial court found, as aggravating factors, that defendant would likely
commit another offense; had a prior record of indictable convictions; and
required deterrence. See N.J.S.A. 2C:44-1(a)(3), (6), (9). It found no mitigating
factors. The judge recounted defendant's extensive criminal record, including
his 1981 convictions of first degree murder, unlawful possession of a firearm,
attempted homicide and weapon possession. The judge concluded that
defendant displayed "an absolute disregard for the law" and his criminal
behavior "left victims," including the unarmed Xavier, whom defendant shot in
the presence of his mother. Based on those findings, the court sentenced
defendant to life in prison for the purposeful murder of Xavier.
Exercising our deferential standard of review, State v. Fuentes, 217 N.J.
57, 70 (2014), we are satisfied that the court adhered to sentencing guidelines
and relied upon competent and credible evidence, and the sentence was not
"clearly unreasonable so as to shock the judicial conscience." Ibid. (quoting
State v. Roth, 95 N.J. 334, 365 (1984)).
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IV.
We turn to the points raised in defendant's pro se submission.
A.
We discern no merit in defendant's contention that the State misled the
grand jury, requiring dismissal of the indictment, by presenting only Fuzia’s
second, inculpatory statement. A prosecutor may not deny a grand jury "access
to evidence that is credible, material, and so clearly exculpatory as to induce a
rational grand juror to conclude that the State has not made out a prima facie
case against the accused." State v. Hogan, 144 N.J. 216, 236 (1996). An alibi
that "directly negates" an accused's guilt falls into that category. Id. at 238.
However, a prosecutor need not reveal exculpatory evidence that lacks
credibility, such as Fuzia's alibi statement, which was contradicted by other
witnesses and Fuzia herself. See ibid.
B.
Defendant also challenges the trial court’s denial of his motion to
sequester his co-defendants before trial. As noted, the prosecutor requested that
they be incarcerated in the same cell. That occurred after they entered into their
plea agreements. The trial court granted defendant's pre-trial motion to sequester
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the two for the duration of the trial under N.J.R.E. 615, but it denied defendant's
request to sequester them before trial, finding no legal support for such an order.
Decisions regarding witness sequestration lie within the trial court's
discretion. State v. Miller, 299 N.J. Super. 387, 399 (App. Div. 1997). The trial
court did not abuse its discretion here. Even if the court had the authority to
order separation of the witnesses before trial, defendant has shown no prejudice,
as the two had already shared a cell for several years. Furthermore, defendant
highlighted the witnesses' living arrangement in summation to suggest they had
an opportunity to coordinate their testimony.
C.
We reject defendant's argument that the trial court erred in permitting the
introduction of the sales receipt from the costume store. The discrepancies
between the date on the receipt and the date Fuzia provided certainly raised
questions as to whether the receipt documented the purchase that Fuzia
described. However, the trial court reasonably exercised its discretion in
admitting the document, leaving it to the jury to weigh its probative value. See
State v. J.M., Jr., 225 N.J. 146, 157 (2016). Although the receipt's imprecision
made it susceptible to challenge as evidence of the purchase, that did not render
it inadmissible. See State v. Coruzzi, 189 N.J. Super. 273, 302 (App. Div. 1983)
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(holding defendant's possession of cash in denominations corresponding "in a
'fairly close way'" to cash taken, while inconclusive on its own, was relevant in
light of other incriminating evidence) (citation omitted).
D.
Defendant also argues the trial court denied him the necessary means of
presenting a defense by denying his application for a private investigator. The
application followed denial by the Office of the Public Defender (OPD) of the
same request. Defense counsel contended that the OPD's staff investigator was
unable to pursue essential avenues of investigation, including reviewing video
footage, interviewing unnamed potential witnesses, and questioning Fuzia.
We consider defendant's argument that he was denied investigatory
resources under the same standard governing claims of ineffective assistance of
counsel. See State v. DiFrisco, 174 N.J. 195, 244 (2002) (analyzing defendant's
claim that he was denied effective expert services as an ineffective-assistance-
of-counsel claim). Under the familiar two-prong standard established in
Strickland v. Washington, 466 U.S. 668, 687 (1984), defendant must show that
he was denied effective assistance of counsel as a result of inadequate
investigatory services, and a reasonable probability that, but for that denial, the
verdict would have been different. Defendant has made only conclusory claims
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about the inadequacy of the OPD investigator, and has provided no detail as to
the investigative steps a private investigator would have taken, let alone
provided evidence that such an investigation would have produced evidence that
could have affected the trial result. See State v. Porter, 216 N.J. 343, 353 (2013)
(stating that "when a petitioner claims his trial attorney inadequately
investigated his case, he must assert the facts that an investigation would have
revealed, supported by affidavits or certifications based upon the personal
knowledge of the affiant or the person making the certification" (quoting State
v. Cummings, 321 N.J. Super. 154, 170 (App. Div. 1999))).
E.
Finally, we reject defendant's contention that Dr. Lilavois's testimony as
to the cause of death violated his rights under the Confrontation Clause by
relying on Dr. Blumenfeld's examination. "[T]he State may present the
testimony of a qualified expert who has conducted independent observation and
analysis regarding an autopsy conducted by a medical examiner who is
unavailable to testify at trial, without violating the defendant's confrontation
rights . . . ." Bass, 224 N.J. at 291-92; see also State v. Michaels, 219 N.J. 1,
45-46 (2014). That is what Dr. Lilavois did here. He did not simply "parrot"
Dr. Blumenfeld's findings. See Bass, 224 N.J. at 319 (stating that "parroting"
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of an autopsy report violates the Confrontation Clause). Dr. Lilavois explained
how he arrived at his own conclusions based on the photos in the file. He
referenced Dr. Blumenfeld's report only three times during his testimony and
repeatedly confirmed he was stating his own conclusions based on his
independent study of the photos and report.
To the extent not addressed, defendant’s remaining points lack sufficient
merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).
Affirmed.
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