STATE OF NEW JERSEY VS. VANCLEVE ASHLEY A- 2504-18 (03-06-1233, MONMOUTH COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-2504-18
STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

VANCLEVE ASHLEY,

Defendant-Appellant.
_______________________

Argued March 1, 2021 – Decided May 7, 2021

Before Judges Fasciale and Rothstadt.

On appeal from the Superior Court of New Jersey, Law
Division, Monmouth County, Indictment No. 03-06-
1233.

John Vincent Saykanic, Designated Counsel, argued
the cause for appellant (Joseph E. Krakora, Public
Defender, attorney; John Vincent Saykanic, on the
brief).

Monica do Outeiro, Assistant Prosecutor, argued the
cause for respondent (Christopher J. Gramiccioni,
Monmouth County Prosecutor, attorney; Monica do
Outeiro, of counsel and on the brief).
 Appellant filed a pro se supplemental brief.

PER CURIAM

In State v. Ashley, 443 N.J. Super. 10, 13, 16-21, 24 (App. Div. 2016), we

vacated defendant Vancleve Ashley's 1 conviction that was entered after he pled

guilty to one count of second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1)

and we remanded for a new trial. After our remand, defendant filed two

unsuccessful pre-trial motions, one seeking to disqualify the Monmouth County

Prosecutor's Office (MCPO) under N.J.S.A. 52:17B-107(a), to disqualify the

Superior Court judges sitting in Monmouth County from any involvement in his

case, and to have the matter transferred under Rule 3:14-2 from Monmouth

County to Essex County, and the other to dismiss the indictment with prejudice.

He later pled guilty again to aggravated assault and was sentenced to time

served.2

Defendant now appeals from his conviction, challenging the January 11,

2018 order denying his motion for disqualification and change of venue and the

1
Defendant is now known as Qawee Ali.
2
The sentence was made concurrent to a federal sentence defendant was serving
for an unrelated offense.
A-2504-18
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October 12, 2018 denial of his motion to dismiss the indictment. On appeal,

defendant raises the following specific arguments:

POINT I

THE TRIAL COURT ABUSED ITS DISCRETION IN
DENYING THE MOTION TO DISMISS THE
INDICTMENT WITH PREJUDICE AS THE
MONMOUTH COUNTY PROSECUTOR'S OFFICE
(MCPO) ILLEGALLY INTRUDED INTO THE
ATTORNEY-CLIENT RELATIONSHIP TO SUCH
AN EXTENT THAT THE ATTORNEY-CLIENT
RELATIONSHIP WAS DE[S]TROYED AND
DEFENDANT ASHLEY'S TRIAL STRATEGY
(ALIBI AND MISTAKEN IDENTITY) WAS
REVEALED; DEFENDANT ASHLEY'S SIXTH
AMENDMENT RIGHT TO EFFECTIVE COUNSEL
AND FOURTEENTH AMENDMENT RIGHT TO
DUE PROCESS OF LAW WERE VIOLATED
UNDER BOTH THE UNITED STATES AND NEW
JERSEY CONSTITUTIONS.

POINT II

THE TRIAL COURT ABUSED ITS DISCRETION IN
DENYING THE MOTION TO DISMISS THE
INDICTMENT WITH PREJUDICE AS THE GRAND
JURY PRESENTATION WAS FUNDAMENTALLY
UNFAIR AS THE GRAND JURORS HEARD FALSE,
INACCURATE AND MISLEADING EVIDENCE
THAT WAS PRESENTED BY THE STATE IN
VIOLATION OF DEFENDANT'S RIGHT TO DUE
PROCESS OF LAW UNDER THE FIFTH AND
FOURTEENTH AMENDMENTS TO THE UNITED
STATES CONSTITUTION AND UNDER THE NEW
JERSEY CONSTITUTION.

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 POINT III

THE TRIAL COURT ABUSED ITS DISCRETION IN
DENYING THE MOTION TO DISMISS THE
INDICTMENT WITH PREJUDICE DUE TO THE
EXCLUSIVE RELIANCE UPON HEARSAY AND
DOUBLE HEARSAY IN THE GRAND JURY
PRESENTATION IN VIOLATION OF
DEFENDANT'S FIFTH AMENDMENT RIGHT TO A
FAIR GRAND JURY AND FOURTEENTH
AMENDMENT RIGHT TO DUE PROCESS AND
RIGHTS UNDER THE NEW JERSEY STATE
CONSTITUTION.

Defendant also filed a pro se supplemental brief in which he raises the following

argument:

POINT I

THE TRIAL COURT ABUSED ITS DISCRETION BY
1) DENYING THE MOTION TO RECUSE THE
MONMOUTH COUNTY JUDICIARY; 2) DENYING
THE MOTION TO DISQUALIFY THE MONMOUTH
COUNTY PROSECUTOR'S OFFICE (MCPO); AND
3) DENYING THE MOTION FOR A CHANGE OF
VENUE UNDER R. 3:14-2 AS A FAIR AND
IMPARTIAL TRIAL (OR PRETRIAL HEARINGS)
COULD NOT BE HAD IN MONMOUTH COUNTY
IN VIOLATION OF DEFENDANT'S FEDERAL AND
STATE CONSTITUTIONAL RIGHT TO DUE
PROCESS AND A FAIR TRIAL (U.S. CONST.
AMEND. XIV; N.J. CONST. ART. 1, PARA. 10).

We are not persuaded by these contentions. We affirm.

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 I.

A.

The facts pertinent to defendant's motions are summarized from the record

as follows. On June 21, 2002, two men using the names "Frank White" and "Big

Bruce Smith" visited the law offices of Peter Paras in Red Bank. Later that same

day, as he was leaving his office, Paras was struck, according to witnesses, by a

blue Jeep Liberty with a license plate number MME74Z that subsequently fled

the scene. Soon thereafter, the Red Bank Police Department suspected

defendant was involved in the assault on Paras based upon information gathered

from witnesses who stated that the vehicle "was operated by a black male driver

with a black male passenger," who were later identified as the men who had

been in Paras's office, and from the New Jersey Motor Vehicle Commission's

records that revealed that the vehicle used to strike Paras was leased to Tina

DeStefano, defendant's girlfriend.

The police spoke with Raimaine York who admitted to accompanying

defendant to Paras's office as "Big Bruce Smith." According to York, defendant

told him he "had to see his lawyer" because the lawyer "needed" to be

"intimidate[d] . . . because he fucked up a case." York told police that once the

two were in Paras's office, he realized it "wasn't [defendant's] attorney and it

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was something bigger than [he] thought it was." He also told police that after

the two left Paras's office, defendant waited in the driver seat of the Jeep for

Paras to leave before accelerating to hit Paras with the vehicle as he left the

office.

The police also learned that Nicholas Lucarella, an unsatisfied

matrimonial client of Paras's, 3 had paid defendant $4,000 to assault but "not to

kill" Paras, and that Lucarella met defendant through Edward Roger Caruso at a

gym in Lodi. Caruso was an ex-Newark police officer who was then working

as a private investigator. Caruso met defendant while performing investigative

services for attorney Anthony Fusco in a different criminal matter involving

defendant. The two met in Fusco's office where they "had an occasion to strike

up a friendship and spent time either in . . . Fusco's office or on occasion to go

out and have a bit[e] to eat and then return to Fusco's office."

At some point a few days after the assault, Caruso met with defendant and

advised him that he should retain counsel in response to defendant telling Caruso

that DeStefano's vehicle had been stolen and used in an assault, but defendant

indicated that he did not think that would be necessary. On another occasion

3
According to the State, Paras represented Lucarella in a post-judgment custody
dispute that did not end in Lucarella's favor.
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shortly after the assault, Caruso happened to meet defendant near a social club

the latter frequented where defendant informed Caruso that he was going to Las

Vegas, Nevada on vacation and would talk to a lawyer when he returned.

Before DeStefano left on vacation with defendant, on June 27, 2002,

police took a statement from her, at which time they informed her that they

wanted to speak to defendant. The next day, defendant and DeStefano traveled

to Las Vegas, Nevada. A few days later, Las Vegas authorities arrested

defendant and DeStefano on New Jersey criminal warrants.

While in custody in Las Vegas, defendant called Caruso seeking his help

in obtaining a lawyer. Defendant asked Caruso to contact an attorney who was

representing defendant in an unrelated homicide case, but that lawyer declined

to represent defendant in this matter. Defendant ultimately retained Marc A.

Calello in July 2002 at Caruso's suggestion. Thereafter, Caruso was engaged to

assist Calello with defendant's defense beginning on September 12, 2002.

Caruso gave statements to the MCPO on November 25, 2002, and

February 14, 2003, 4 in which he described his relationship with defendant and

Lucarella and informed investigators of a payment Lucarella made to defendant,

4
According to defendant, Caruso was represented during his statements to
police by an attorney, Joseph Ferrante, who had been retained by Fusco for
Caruso.
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which Caruso witnessed. These statements were read to the grand jury on June

2, 2003.

At the time Caruso provided his statements to the MCPO, Fusco was

representing Caruso's son in an unrelated criminal matter. Six years later, during

Lucarella's trial for his role in Paras's assault, Caruso recanted a number of the

statements he gave to police in 2002 and 2003, claiming that he gave them at

Fusco's direction in exchange for Fusco's promise to use his influence to secure

a favorable sentence for Caruso's son. 5

On June 23, 2003, a Monmouth County Grand Jury indicted defendant,

charging him with one count of first-degree attempted murder contrary to

N.J.S.A. 2C:5-1 and N.J.S.A. 2C:11-3; one count of first-degree conspiracy to

commit murder contrary to N.J.S.A. 2C:5-2(a)(1) and/or (2) and N.J.S.A. 2C:11-

3; and one count of second-degree aggravated assault, contrary to N.J.S.A.

2C:12-1(b)(1).

5
According to defendant, Fusco, who had admitted to having a relationship
with Lucarella’s ex-wife, feared he would be prosecuted in connection with
Paras's assault and asked Caruso to lie to the grand jury in order to get Fusco
"off the hook."
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 B.

After our remand, defendant filed his motion to change venue and to

disqualify the MCPO, contending that members of that office, against which he

had filed a civil suit, engaged in prosecutorial misconduct by, among other acts,

taking a statement from Caruso who that office knew to be an investigator hired

by defendant's attorney to assist in his defense. Moreover, he claimed that the

judge assigned to the case was biased and conspired against him based on the

judge's former position as the county sheriff.

Judge Lisa Thornton considered the motion and the parties' oral arguments

on January 20, 2017, and May 3, 2017. On January 11, 2018, Judge Thornton

issued an order denying defendant's motion and attached a twenty-three-page

written decision in which she analyzed five "incidents" defendant cited to in

support of his argument to disqualify the MCPO and to transfer venue because

no Monmouth County judge could decide the case impartially. The judge stated

the following:

(1) he was allegedly assaulted over ten years ago in the
Monmouth County Correctional Institution (MCCI) by
officers that were sympathetic to attorney Anthony
Fusco. He claims the officers feared defendant would
implicate Mr. Fusco in the assault on Mr. Paras; (2) his
conviction was vacated on appeal; (3) his civil case
against the MCPO and the MCCI was dismissed by a

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 judge in the Monmouth County Civil Division; (4) his
case was originally assigned to [a judge], who was the
Monmouth County Sheriff when defendant was
allegedly assaulted by officers at MCCI; (5) he was
questioned by corrections officers at a NJ Department
of Corrections prison, after he lost control of his temper
in [the other judge's] courtroom during a court
proceeding.

Judge Thornton concluded that no "reasonable fully informed person

would . . . conclude that no judge in Monmouth County could be fair and

impartial." She noted that defendant had provided no credible evidence that he

had been assaulted by officers at MCCI, and that even if the assertion were true,

there was "no reason to conclude" that the entire Monmouth judiciary would be

prejudiced against defendant. She further found that the reversal of his

conviction and the assignment of his case to the judge who was the former

sheriff were not evidence of bias against him, noting that the other Law Division

judges involved in his case demonstrated no "bias or animosity" against

defendant and that when the matter had been assigned to the former sheriff, that

judge was unaware of the lawsuit filed by defendant against MCCI during his

tenure as the Monmouth County Sheriff.

Judge Thornton also explained that when this potential conflict was

disclosed to the court, "the matter was transferred to . . . the Presiding Judge of

the Criminal Division" in Monmouth County. She concluded that defendant had

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failed to demonstrate that the newly assigned judge would not be impartial and

noted that he had not yet been appointed to the bench at the time of defendant's

arrest or alleged assault and had no prior involvement with his case.

Judge Thornton further found no merit to defendant's argument that the

Monmouth judiciary should be recused because a judge in the Civil Division

dismissed his lawsuit against the MCPO, MCCI, Fusco and Caruso. She noted

that defendant failed to allege that the judge there erred in her decision and

added that there was "no evidence that her decision was based on bias or malice

against defendant."

Finally, Judge Thornton discussed an incident that occurred before the

judge who was the former sheriff in which defendant, when advised that the

judge would not be entertaining his motion to dismiss the indictment on that

date, raised his voice and stated, "I know who you is. You were the sheriff's

officer . . . . I know who the fuck you is. No, no you stop. Bastard. This ain't

no fucking damn valid indictment. This ain't no valid indictment. I told 'em I

don't want no goddamn deal." Following this incident, officers at a State prison

facility questioned him about his behavior. Judge Thornton concluded there was

nothing unusual about the officers' conduct in this situation and expressed that

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it was "not clear why the court should consider this incident as evidence of bias

on the part of the court."

Summarizing her findings as to defendant's claim that his case should be

transferred away from Monmouth County, Judge Thornton stated:

Unlike the facts in [State v. Dalal, 221 N.J. 601
(2015)], there is simply no basis to conclude that
recusal is appropriate because a fully informed person
would doubt the impartiality of the Monmouth County
judiciary. On the contrary, defendant's moving papers
indicate his request is motivated by his desire to "forum
shop." He candidly admits that he would like the case
moved to Essex County to be closer to his family. [6]
Apparently, the fact that Mr. Paras, the victim of the
assault, and his family would be inconvenienced by
travelling [sic] to Essex County is of no concern to
defendant.

Judge Thornton also found there was no reason for the MCPO to be

disqualified, as there was "no evidence of 'widespread misconduct' or any other

disqualifying conflict contemplated by the [c]ourt in [State v. Harvey, 176 N.J.

522 (2003)]." She found no support for defendant's argument that the MCPO

violated his attorney-client privilege when they interviewed Caruso and

allegedly received statements from him that both "implicated [defendant] and

6
In his motion, defendant sought a change in venue to Essex County so it would
be more convenient for his family and counsel.
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revealed his trial strategy." She concluded that defendant had failed to satisfy

his burden in demonstrating the statements were made during a "professional

consultation" and noted that most of the communications were made before

Calello had been retained as counsel and "had nothing to do with the attorney -

client relationship."

Having said that, the judge described two conversations disclosed by

Caruso which could have been privileged communications. The first involved

Caruso's recruitment by Calello to perform investigatory actions with respect to

a possible alibi for defendant. Following defendant's arrest in Las Vegas,

Caruso advised defendant to schedule an appointment with Calello to discuss

Calello's representation of defendant. Caruso informed an investigator that he

"assumed the meeting took place because 'Mr. Calello called [him] in requesting

certain investigator actions with respect to taking statements regarding a

possible alibi.'" Judge Thornton stated that the communication could be

considered "privileged" because "[i]t was a professional conversation between

an attorney and his agent regarding tasks to be completed for defendant's

defense." However, she concluded that defendant "was not prejudiced by this

revelation" and had "failed to present any argument that he was." She explained

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that had defendant intended to assert an alibi as a defense, he would have been

required to provide that information to the MCPO pursuant to Rule 3:12-2.

The second conversation that could have been privileged was between

Caruso and defendant when Caruso visited defendant in jail. While giving a

second statement at the MCPO on February 14, 2003, Caruso was asked if he

ever had conversations with defendant "concerning his idea of what the proofs

of this case were." Caruso told the MCPO that defendant informed him "that

the[ authorities] were looking for a white man, and . . . you can take me for a lot

of things, but you can never take me for a white man."

Judge Thornton described the question as "inappropriate" and noted that

the investigator "should have known that the question could have elicited

responses that breached the attorney-client privilege." She reasoned that

although the communication could have been privileged, as Caruso was likely

"acting in his capacity as [defendant's] investigator," there was again no

prejudice to defendant because of this revelation. She noted that there was "no

indication in the record that law enforcement ever suspected Caucasian men

were driving the Jeep Liberty." Judge Thornton therefore concluded that this

statement did not demonstrate the "widespread misconduct" or a "disqualifying

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conflict" that defendant needed to show to have the MCPO disqualified, and for

those reasons, she denied defendant's motion.

C.

Defendant's motion to dismiss the indictment was heard by Judge Dennis

R. O'Brien, who denied the motion on October 12, 2018, and set forth his reasons

in a ten-page rider attached to his order. Judge O'Brien stated that defendant

argued for the indictment's dismissal with prejudice for "three main reasons":

(1) because "the MCPO improperly intruded into his attorney-client

relationship, in violation of his Sixth Amendment right to counsel, by

interviewing Caruso, a private investigator retained by [d]efendant's counsel";

(2) because "the presentation to the Grand Jury was fundamentally unfair

because the Grand Jurors heard inaccurate and misleading evidence and because

the State did not present the Grand Jury with exculpatory evidence"; and (3)

"because the State exclusively relied on hearsay and double hearsay during the

Grand Jury presentment, violating the [d]efendant's Fifth Amendment right to a

fair Grand Jury."

Judge O'Brien found that the first issue raised by defendant was the "same

allegation" that defendant had made in his first motion heard by Judge Thornton

and that the issue had been "fully and fairly litigated." For that reason, Judge

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O'Brien concluded that the "law of the case" doctrine applied to defendant's

arguments concerning the MCPO's alleged intrusion on the attorney-client

privilege, especially since defendant did not argue that the proceedings before

Judge Thornton were "unfair or that the interests of justice otherwise require [d]

th[e] motion to be re-litigated."

The judge then found defendant's second contention, that the State misled

the grand jury by presenting Caruso's statements that were later recanted, to be

without merit. Judge O'Brien observed that the recantation did not occur until

"six years, four months, and twenty-eight days after" Caruso's original

statements had been presented to the grand jury and the MCPO had no "actual

knowledge" of it at the time of defendant's indictment. The judge also noted

that even if the State had somehow known that Caruso would recant his

statements six years after giving them, Caruso's recantation was not clearly

exculpatory, as the grand jury would then have to decide whether his initial

statement or recantation were truthful.

Finally, Judge O'Brien addressed defendant's argument that the indictment

should be dismissed because the State relied exclusively on hearsay and double

hearsay evidence. The judge rejected defendant's reliance upon State v.

Chandler, 98 N.J. Super. 241 (Law Div. 1967) and State v. Costa, 109 N.J.

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Super. 243 (Law Div. 1970) for the proposition that the State cannot rely on

hearsay evidence during grand jury presentment, because neither case was still

good law, nor were either of them binding authority. To the contrary, Judge

O'Brien explained that a grand jury "may return an indictment based on hearsay

testimony or other evidence which may not be legally competent or admissible

at trial" and further noted that the New Jersey Rules of Evidence expressly

provide for the relaxation of the evidence rules in grand jury proceedings.

Thereafter, defendant pled guilty again to the one count of aggravated

assault,7 while preserving his ability to appeal the denial of his pre-trial motions.

On January 4, 2019, Judge O'Brien sentenced defendant in accordance with the

terms of a negotiated plea agreement. This appeal followed.

II.

We review a trial court's denial of a motion to dismiss an indictment for

abuse of discretion, State v. Bell, 241 N.J. 552, 561 (2020) (quoting State v.

Twiggs, 233 N.J. 513, 44 (2018)), and we apply the same standard in reviewing

denials of motions to change venue under Rule 3:14-2, State v. Biegenwald, 106

N.J. 13, 33, 36 (1987), State v. Belton, 60 N.J. 103, 107 (1972), or to recuse a

7
In doing so, defendant provided a factual basis for his plea—acknowledging
that he had been paid money to assault Paras, that he had enlisted York's help to
do so, and that they had used DeStefano's Jeep to strike Paras.
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party or judge. Goldfarb v. Solimine, 460 N.J. Super. 22, 30 (App. Div. 2019).

We will find an abuse of discretion only where "a decision is 'made without a

rational explanation, inexplicably departed from established policies, or rested

on an impermissible basis.'" State v. R.Y., 242 N.J. 48, 65 (2020) (quoting Flagg

v. Essex Cnty. Prosecutor, 171 N.J. 561, 571 (2002)). When a trial court's

decision turns on a legal question, we review that determination de novo,

without deference to the trial court's interpretation. Twiggs, 233 N.J. at 532.

III.

A.

Guiding our review of the denial of a motion to dismiss an indictment is

the principle that "[o]nce a grand jury returns an indictment, a court should

dismiss that indictment 'only on the clearest and plainest ground, and only when

the indictment is manifestly deficient or palpably defective.'" Bell, 241 N.J. at

560 (quoting Twiggs, 233 N.J. at 531-32). Dismissal of an indictment is a "last

resort because the public interest, the rights of victims and the integrity of the

criminal justice system are at stake." State v. Williams, 441 N.J. Super. 266,

272 (App. Div. 2015) (quoting State v. Ruffin, 371 N.J. Super. 371, 384 (App.

Div. 2004)).

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 Where a motion to dismiss is based upon prosecutorial misconduct before

the grand jury, dismissal is not required "[u]nless the prosecutor's

misconduct . . . is extreme and clearly infringes upon the [grand] jury's decision-

making function." Bell, 241 N.J. at 560 (alterations in original) (quoting State

v. Murphy, 110 N.J. 20, 35 (1988)). Dismissal is only appropriate where "the

prosecutor's conduct 'impinge[s] on a grand jury's independence and improperly

influence[s] its determination.'" Id. at 561 (alterations in original) (quoting State

v. Francis, 191 N.J. 571, 587 (2007)).

B.

The gist of defendant's argument on appeal is that prior to the subject

assault, he had an ongoing professional relationship with Caruso such that

anything he discussed with Caruso was subject to the attorney-client privilege.

Specifically, defendant argues his attorney-client privilege and, by extension,

his right to effective counsel were violated when the MCPO improperly

interviewed Caruso in November 2002 and February 2003—allegedly revealing

his trial strategy in the process—while knowing that Caruso had been retained

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as an investigator by defendant's counsel on September 12, 2002. Accordingly,

he argues this improper questioning "mandates" dismissal of the indictment. 8

Among the examples of revealed conversations upon which defendant

asserts a violation the attorney-client privilege are: Caruso's statement that he

was present when defendant purchased or leased a blue Jeep Liberty; Caruso

telling the MCPO that he was contacted by defendant "[a] day or two after the

incident" at which point he advised defendant "to get an attorney immediately";

a conversation following defendant's arrest in Las Vegas in which Caruso told

defendant to "set up an appointment with Mr. Calello"; Caruso's statement that

he "assumed that [the meeting] took place [because] Mr. Calello called [him] in

requesting certain investigator actions with respect to taking statements

regarding a possible alibi"; and defendant's statements that he liked Lucarella,

was "gonna do [Lucarella] a favor," and that he planned to "rough[] up" an

attorney for Lucarella. He also notes that authorities recorded a call between

8
At several points, defendant states that the MCPO did not consider Caruso to
be criminally involved in the attack on Paras in order to avoid a waiver of the
attorney-client privilege pursuant to the "crime-fraud" exception. This
exception, which provides that "communication[s] in the course of legal service
sought or obtained in aid of the commission of a crime or a fraud " are not
protected by attorney-client privilege, N.J.R.E. 504(2)(a), was not relied on by
either Judge Thornton or Judge O'Brien, nor by the State in the instant appeal.
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Caruso, defendant, and DeStefano when the latter two were arrested in Las

Vegas.

Defendant further points to Caruso's February 2003 statement to the

MCPO wherein investigators asked Caruso whether he ever had "any

conversations with [defendant] regarding his idea of what the proofs of this case

were," to which Caruso responded as follows:

He told me that he received word that they were looking
for a bald shaved head black man who was very, very
big. He said to me do I look big to you, I’m an average
size guy. I had occasion to meet [defendant] in Garfield
near a social club that he would frequent. He was
standing on the corner with his brother when I arrived.
His brother is his identical twin and they look similar,
not exactly but similar. I told [defendant] that from
what I could glean from the information he gave me that
this case is strictly an identification case, and I pointed
over to his twin brother and said maybe it was him. . . .
Later on I think on one of my jail visits to him, he told
me that they were looking for a white man, and he said
you can take me for a lot of things, but you can never
take me for a white man.

Defendant asserts that this inappropriate questioning by the MCPO

revealed defendant's intent to use identity and alibi as trial strategies.

Accordingly, defendant argues that taking the above statements and later

presenting them to the grand jury constituted prosecutorial misconduct

warranting the dismissal of his indictment. We disagree.

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 C.

We conclude that defendant's contentions about the grand jury being

exposed to information secured through the violation of his privileged

communication with his attorney or his attorney's investigator are without any

merit. While defendant correctly asserts that the attorney-client privilege exists

to protect "communications between a client and his attorney," and "extends to

consultations with third parties whose presence and advice are necessary to the

legal representation," O'Boyle v. Borough of Longport, 218 N.J. 168, 185

(2014), he fails to recognize that the privilege does not protect all

communications. Rather, the privilege only protects communications made

between a "lawyer and his client in the course of that relationship and in

professional confidence." Tractenberg v. Twp. of W. Orange, 416 N.J. Super.

354, 375 (App. Div. 2010) (quoting N.J.R.E. 504(1)). Regardless of whether

the allegedly protected communication is made to a lawyer or the lawyer's agent,

the "sine qua non of the privilege is that the client has consulted the lawyer in

the latter's capacity as an attorney." L.J. v. J.B., 150 N.J. Super. 373, 377 (App.

Div. 1977). See also Fellerman v. Bradley, 99 N.J. 493, 499 (1985) ("For a

communication to be privileged it must initially be expressed . . . in conjunction

with seeking or receiving legal advice from [an] attorney . . . ."). "The burden

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of proof" to establish that a communication is protected by the attorney-client

privilege rests with "the person . . . asserting the privilege." Hedden v. Kean

Univ., 434 N.J. Super. 1, 12 (App. Div. 2013).

Accordingly, defendant had the burden of establishing that

communications between he and his attorney—or he and his attorney's agent—

were made within the context of the attorney-client relationship, not just that a

"professional relationship" existed. Ibid. Defendant cites a number of

interactions between himself and Caruso which were revealed to the MCPO and

which implicate defendant in the assault on Paras; the revelation of which he

asserts violated his attorney-client privilege—e.g., Caruso's statement that he

was present when defendant purchased or leased a blue Jeep Liberty, Caruso's

introduction of defendant to Lucarella, defendant's statement that he planned to

"rough[] up" an attorney for Lucarella, defendant's request that Caruso put him

in touch with an attorney, and defendant's statement to Caruso at a Garfield

social club days after the incident that the authorities were looking for a black

man in connection with the assault. However, these interactions all occurred

well before Caruso's retention by Calello to work on defendant's case. Rather,

each instance arose from the personal relationship that existed between Caruso

and defendant. Such a relationship does not render all communications between

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them consultations with an agent "in the latter's capacity as an [agent of an]

attorney," L.J., 150 N.J. Super. at 377, and is insufficient to sustain defendant's

burden to afford these conversations protection under the attorney-client

privilege. Accordingly, Judge Thornton did not err in finding that the privilege

did not apply to those conversations.

With respect to the two instances in which Judge Thornton found the

attorney-client privilege to apply, she correctly found that neither warranted the

recusal of the MCPO because neither instance prejudiced defendant. As to

defendant's assertion that his defense of alibi was revealed when Caruso

informed investigators that "Calello called [him] in requesting certain

investigator actions with respect to taking statements regarding a possible alibi,"

Judge Thornton appropriately noted that information would have had to have

been provided to the prosecutor's office in discovery anyway if defendant sought

to establish an alibi defense. Where the defense is asserted, defendant is

obligated by Rule 3:12-2 to advise the State pretrial as to the "place or places at

which [he] claims to have been at the time of the alleged offense and the names

and addresses of the witnesses upon whom the defendant intends to rely."

Moreover, Judge Thornton accurately noted that defendant was not

prejudiced by the revelation of his statement to Caruso while defendant was in

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jail that investigators were looking for a Caucasian man—a fact that is not

changed by defendant's insistence that the judge overlooked Caruso's suggestion

earlier in the same statement that the case was merely an "identification" case.

Critically, Caruso's designation of defendant's case as one of "identification"

occurred when Caruso met defendant near the social club—before Caruso was

retained—and was thus not protected by the attorney-client privilege as

previously explained. In any event, defendant has not argued how exactly he

was prejudiced, he merely states that "it is difficult to imagine a more prejudicial

statement than a defense investigator revealing the defense strategy

(misidentification/possible alibi)." In short, there were no protected

communications that prejudicially revealed a misidentification strategy, and as

before, if defendant sought to establish an alibi defense, he would have had to

disclose that information to the MCPO. Accordingly, Judge Thornton

appropriately concluded that there was no breach of the attorney-client privilege

that warranted recusal of the MCPO.

IV.

We reach the same conclusion as to defendant's challenge to Judge

O'Brien's reliance on Judge Thornton's findings and applying the law of the case

doctrine to defendant's attorney-client privilege claims when rejecting

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defendant's motion to dismiss the indictment. The doctrine generally prohibits

a second judge, in the absence of additional developments or proofs, from

differing with an earlier ruling. See Lombardi v. Masso, 207 N.J. 517, 538-39

(2011). "It is a non-binding rule intended to 'prevent relitigation of a previously

resolved issue.'" Id. at 538 (quoting In re Estate of Stockdale, 196 N.J. 275, 311

(2008)).

"A hallmark of the law of the case doctrine is its discretionary nature,

calling upon the deciding judge to balance the value of judicial deference for the

rulings of a coordinate judge against those 'factors that bear on the pursuit of

justice and, particularly, the search for truth.'" Id. at 538-39 (quoting Hart v.

City of Jersey City, 308 N.J. Super. 487, 498 (App. Div. 1998)). While the law

of the case doctrine is a discretionary, non-binding rule, "[p]rior decisions on

legal issues should be followed unless there is substantially different evidence

at a subsequent trial, new controlling authority, or the prior decision was clearly

erroneous." Sisler v. Gannett Co., 222 N.J. Super. 153, 159 (App. Div. 1987).

We do not discern any abuse of Judge O'Brien's discretion in this case.

The judge appropriately noted that the facts and arguments again advanced by

defendant as to whether a violation of the attorney-client privilege had occurred

were the same—there was no new or different evidence nor any new authority,

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and as we have now confirmed, her conclusions were legally correct.

Furthermore, as already discussed, Judge Thornton's findings were not clearly

erroneous. As such, Judge O'Brien was legally permitted to apply the law of the

case doctrine, and appropriately did so.

V.

We turn next to defendant's argument that the prosecution's reading of

Caruso's statements to the grand jury that Caruso later recanted constituted

prosecutorial misconduct. We conclude this contention is without sufficient

merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). Suffice it to

say there was no indication that when the prosecutor presented Caruso's

statement to the grand jury that the prosecutor had reason to know Caruso would

recant six years later. Moreover, because "[r]ecantation testimony is generally

considered exceedingly unreliable," State v. Hogan, 144 N.J. 216, 239 (1996),

Caruso's recantation did not give rise to exculpatory evidence. See id. at 237-

38 (stating a prosecutor is only required at the grand jury stage to present

evidence contrary to the State's position in the rare circumstance where the

prosecution has "actual knowledge" of evidence that both "directly negates

guilt" and is "clearly exculpatory"); see also State v. Scherzer, 301 N.J. Super.

363, 427-28 (App. Div. 1997) (stating evidence is not clearly exculpatory where

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its presentation would require the grand jury to make a credibility

determination).

VI.

Equally without merit is defendant's contention that the grand jury

impermissibly relied on hearsay evidence. Contrary to defendant's contention,

as Judge O'Brien found, courts have long recognized that indictments "may be

based largely or wholly on hearsay and other evidence which may not be legally

competent or admissible at . . . trial." State v. Holsten, 223 N.J. Super. 578, 585

(App. Div. 1988) (emphasis added) (quoting State v. Schmidt, 213 N.J. Super.

576, 584 (App. Div. 1986)), rev'd on other grounds, 110 N.J. 258 (1988); see

also State v. Scherzer, 301 N.J. Super. 363, 428 (App. Div. 1997). Moreover,

an indictment need not be dismissed where hearsay or even "highly prejudicial"

evidence has been presented to the grand jury where the grand jury process itself

has not been shown to be unfair. Scherzer, 301 N.J. Super. at 428-29.

VII.

Finally, we also find no basis for Judge Thornton to have changed the

venue of defendant's case to another vicinage. Here, we find no reason to disturb

the judge's discretionary determinations that defendant failed to demonstrate

how the judge to whom his case was last assigned was biased and, for that

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reason, a change of venue was not warranted. See Dalal, 221 N.J. at 606-07. As

the State pointed out in its brief, the judges with whom defendant perceived he

had issues had either retired or recused themselves. There was no reason to

change the venue.

VIII.

To the extent we have not specifically addressed any of defendant's

remaining arguments, we conclude they too are without sufficient merit to

warrant discussion in a written opinion. R. 2:11-3(e)(2).

Affirmed.

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