STATE OF NEW JERSEY VS. JOSEPH A. LICCIARDELLO(14-04-0294, GLOUCESTER COUNTY AND STATEWIDE)(RECORD IMPOUNDED)

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is only binding on the
parties in the case and its use in other cases is limited. R.1:36-3.

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2651-15T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JOSEPH A. LICCIARDELLO, a/k/a
JOSEPH A. LICCIADELLO,

Defendant-Appellant.

Submitted June 1, 2017 – Decided June 22, 2017

Before Judges Carroll, Gooden Brown and
Farrington.

On appeal from the Superior Court of New
Jersey, Law Division, Gloucester County,
Indictment No. 14-04-0294.

Joseph E. Krakora, Public Defender, attorney
for appellant (Rebecca Gindi, Assistant Deputy
Public Defender, of counsel and on the brief).

Sean F. Dalton, Gloucester County Prosecutor,
attorney for respondent (Joseph H. Enos, Jr.,
Senior Assistant Prosecutor, of counsel and
on the brief).

PER CURIAM
 On April 2, 2014, a Gloucester County grand jury returned an

indictment charging defendant Joseph Licciardello with fourth-

degree criminal sexual contact, N.J.S.A. 2C:14-3b (count one);

third-degree criminal restraint, N.J.S.A. 2C:13-2a (count two);

and second-degree attempt to commit sexual assault, N.J.S.A. 2C:5-

1/2C:14-2c(1) (count three).

Count one was dismissed on motion of the State prior to trial.

At the conclusion of the trial, the jury found defendant guilty

of the lesser-included offenses of false imprisonment as a

disorderly persons offense, N.J.S.A. 2C:13-3, and fourth-degree

attempted criminal sexual contact, N.J.S.A. 2C:5-1a(3)/2C:14-3b.

On January 29, 2016, defendant was sentenced to a three-year

probationary term on the attempted sexual contact conviction. As

conditions of his probation, defendant was required to perform 150

hours of community service and undergo sex offender counseling and

treatment. The court imposed the appropriate fees, penalties, and

assessment on both convictions, and ordered defendant to comply

with all Megan's Law1 requirements. This appeal followed.

On appeal, defendant raises the following arguments:

POINT I

THE TRIAL COURT ERRED BY FAILING TO REDACT
IRRELEVANT PORTIONS OF [DEFENDANT'S]

1
N.J.S.A. 2C:7-1 to -23.

2 A-2651-15T2
STATEMENT TO THE POLICE WHICH PORTAYED HIM TO
THE JURY AS AN ANGRY, SEX-ADDICTED DANGER TO
SOCIETY IN VIOLATION OF N.J.R.E. 401, 402,
403, 404(A), AND 404(B) (Not Raised Below).
A. [Defendant's] Prior Non-Violent, Lawful
Sexual Activity And Prior Instances of Anger
Were Wholly Irrelevant To the Present Offenses
Under N.J.R.E. 401 and 402.

B. Because Character Evidence that [Defendant]
Is Prone To Anger And Sex-Addicted Served Only
To Suggest That [Defendant's] Conduct
Underlying the Offenses Conformed Thereto, It
was Inadmissible Under N.J.R.E. 404.

1. Evidence That [Defendant] has a
"bad temper" and "definitely has a
sex problem" was Inadmissible Under
N.J.R.E. 404(a).

2. Evidence That [Defendant] has a
"bad temper" causing him to black
out, and "definitely [has a sex]
problem" which caused him to
frequently masturbate, watch
pornography, and have sex with his
ex-girlfriend, was inadmissible
under N.J.R.E. 404(b).

3. Even If the Court Finds That The
Evidence Was Not Excludable Under
N.J.R.E. 401, 402, 403, 404(a) or
404(b), A New Trial Is Required
Because The Trial Court Gave No
Limiting Instruction To The Jury In
Violation of Cofield And Hampton.

POINT II

[DEFENDANT'S] CONVICTION FOR THE LESSER-
INCLUDED OFFENSE OF THE CHARGED CRIME OF
ATTEMPTED SEXUAL ASSAULT CANNOT STAND BECAUSE
THE CONTRADICTORY AND CONFUSING JURY
INSTRUCTIONS AND VERDICT SHEET MAKE IT
IMPOSSIBLE TO DETERMINE WHETHER THE JURY FOUND

3 A-2651-15T2
 [DEFENDANT] GUILTY OF ATTEMPTED CRIMINAL
SEXUAL CONTACT OR THE COMPLETED OFFENSE OF
CRIMINAL SEXUAL CONTACT, CREATING A SERIOUS
RISK OF A PATCHWORK VERDICT. (Not Raised
Below).

After reviewing the record in light of the contentions advanced

on appeal, we affirm.

I.

We briefly summarize the evidence presented during the

December 2015 trial, at which the victim, V.P.,2 and Sergeant John

Gigante of the Deptford Township Police Department, testified.

The charges stemmed from an incident between twenty-year-old

defendant and seventeen-year-old V.P. while they were alone in

defendant's car after hours of tailgating with friends before a

concert. V.P. testified that instead of taking her home, defendant

pulled his car over on two separate occasions and attempted to

have sex with her, holding her neck down and ultimately ripping

her underwear. V.P. asserted that she repeatedly said "no" and

tried to push defendant away. She maintained defendant did not

stop and let her out of the car until she showed him she was having

her period, at which point he "got angry" and "really mad." She

reported the incident to the police the following day, after

defendant failed to return a camera he took from her. V.P.'s

2
Pursuant to Rule 1:38-3(c)(12), we use initials to protect the
identity of the victim of a sexual offense.

4 A-2651-15T2
ripped underwear and photographs of the marks on her neck were

introduced in evidence at trial.

Defendant gave a statement to Sgt. Gigante in which he claimed

he was drunk and admitted he was trying to have sex with V.P.,

that he held her down by her shoulders, and that V.P. was squeezing

her legs together while he was trying to push them apart.

Defendant conceded he had a bad temper and that evening was a

"little mad." When asked by Gigante at what point he stopped,

defendant responded "[i]t was just like I [] just snapped and went

back to reality and just realized what I was doing was wrong."

Defendant further stated he was not "gross[ed] out" that V.P. had

her period, and elaborated: "I've had sex with my girlfriend on

her period before. But [] no, like that's not what made me stop.

What made me stop is [] I just knew . . . that I was taking it too

far."

Defendant's recorded statement was ruled admissible at a

pretrial Miranda3 hearing. The statement was played at trial with

redactions that were agreed upon by the State and defendant.

However, portions of the statement referring to defendant having

a bad temper that caused him to blackout at times and a "problem"

3
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d
694 (1966).

5 A-2651-15T2
involving frequent masturbation, viewing pornography, and having

frequent daily consensual sexual intercourse with his ex-

girlfriend, were not redacted. The defense at trial was that

defendant voluntarily renounced any criminal purpose.4 As noted,

the jury ultimately acquitted defendant of attempted sexual

assault and criminal restraint, but found him guilty of the lesser-

included offenses of attempted sexual contact and false

imprisonment.

II.

Defendant argues for the first time on appeal that he was

deprived of a fair trial because the trial court did not sua sponte

exclude as irrelevant or unduly prejudicial the un-redacted

portions of the statement pursuant to N.J.R.E. 401, 402, 403, or

404, or issue a curative instruction when the statement was played

for the jury. Defendant also argues that the court erred in

failing to give a Hampton5 instruction to guide the jury in

evaluating the credibility of portions of defendant's statement

due to Gigante's improper interrogation tactics.

We view defendant's arguments through the prism of the plain

error standard because he did not object to the admission of the

4
See N.J.S.A. 2C:5-1(d).
5
State v. Hampton, 61 N.J. 250, 272 (1972).

6 A-2651-15T2
redacted statement at trial or request any limiting instructions.

R. 2:10-2. Under that standard, "[a]ny error or omission shall

be disregarded by the appellate court unless it is of such a nature

as to have been clearly capable of producing an unjust result[.]"

Ibid.; see State v. Galicia, 210 N.J. 364, 386 (2012). As our

Supreme Court recently stated, when applying the plain error

doctrine to evidence that should have been excluded, "the error

will be disregarded unless a reasonable doubt has been raised

whether the jury came to a result that it otherwise might not have

reached." State v. R.K., 220 N.J. 444, 456 (2015) (citing State

v. Daniels, 182 N.J. 80, 95 (2004)). In weighing the effect of

improperly admitted evidence, we may assess "if the State's case

is particularly strong." Ibid.

As defendant correctly points out, evidence of prior crimes

and bad acts are not admissible to prove that a criminal defendant

had a propensity to engage in criminal activity or acted in

conformity with prior criminal activity. N.J.R.E. 404(b). The

concern in admitting evidence of prior bad acts is that "the jury

may convict the defendant because he is a bad person in general."

State v. Cofield, 127 N.J. 328, 336 (1992) (citation omitted). If

evidence is admitted pursuant to N.J.R.E. 404(b), then the court

must give a limiting instruction specifically directing the jury

7 A-2651-15T2
on the limited use of the evidence. State v. Nance, 148 N.J. 376,

391 (1997).

"The threshold determination under [N.J.R.E.] 404(b) is

whether the evidence relates to 'other crimes,' and thus is subject

to continued analysis under [N.J.R.E.] 404(b)[.]" State v. Rose,

206 N.J. 141, 179 (2011). Although the rule refers to "evidence

of other crimes, wrongs or acts," evidence and arguments to the

jury suggestive of a defendant's prior criminal activity — such

as gang membership, mugshots, references to defendant being in

jail or prison, and aliases suggesting membership in a criminal

class — have all been held to implicate Rule 404(b). See State

v. Harris, 156 N.J. 122, 172-73 (1998); State v. Goodman, 415 N.J.

Super. 210, 227-28 (App. Div. 2010), certif. denied, 205 N.J. 78

(2011); State v. Salaam, 225 N.J. Super. 66, 72-76 (App. Div.),

certif. denied, 111 N.J. 609 (1988); State v. Childs, 204 N.J.

Super. 639, 651-52 (App. Div. 1985). See also State v. Skinner,

218 N.J. 496, 517-19 (2014) (holding that violent, profane, and

disturbing rap lyrics were subject to a N.J.R.E. 404(b) analysis).

Here, we disagree with defendant that references in his

statement to having a bad temper, or "a problem" that led him to

masturbate, watch pornography, and engage in frequent consensual

sex with his ex-girlfriend, constitute "crimes, wrongs or acts"

within the ambit of N.J.R.E. 404(b). While no doubt distasteful

8 A-2651-15T2
to some, and admittedly a close call, we conclude that such acts

are not indicative of prior criminal behavior. Accordingly, they

are not "crimes, wrongs or acts" under N.J.R.E. 404(b) and the

trial judge did not err by failing to apply the four-prong test

established in Cofield, supra, 127 N.J. at 338. See State v.

Jones, 425 N.J. Super. 258, 274 (App. Div. 2012) (noting our review

is plenary where the trial court fails to conduct a required

Cofield hearing (citing Rose, supra, 206 N.J. at 157-58)).

We next address defendant's contentions with respect to

N.J.R.E. 401, 402, and 403. "Except as otherwise provided in

these rules or by law, all relevant evidence is admissible."

N.J.R.E. 402. "'Relevant evidence' means evidence having a

tendency in reason to prove or disprove any fact of consequence

to the determination of the action." N.J.R.E. 401. N.J.R.E. 403

provides that relevant evidence "may be excluded if its probative

value is substantially outweighed by the risk of (a) undue

prejudice, confusion of issues, or misleading the jury, or (b)

undue delay, waste of time, or needless presentation of cumulative

evidence." The burden of proof rests on defendant to show actual

undue prejudice, rather than the mere possibility of prejudice,

substantially outweighs the probative value. State v. Swint, 328

N.J. Super. 236, 253 (App. Div.), certif. denied, 165 N.J. 492

(2000).

9 A-2651-15T2
 In the present case, defendant did not object to the admission

of the redacted statement, which he now contends contains portions

that are irrelevant. Consequently, the trial court was deprived

of the opportunity to rule on the relevance of the portions of the

statement that defendant now disputes. Further, it is unclear

from the record whether defense counsel made a tactical decision

not to object to the evidence. Defense counsel may well have

believed defendant's statements showed he lacked the requisite

intent to sexually assault V.P., and instead portrayed him as

merely sexually aroused and intoxicated. Notably also, defense

counsel in summation specifically acknowledged that defendant

engaged in sexual intercourse in the past with girls who had their

period. Counsel stated: "You heard [defendant] say during his

statement that he has had sex with his girlfriends in the past on

their period and that wasn't why he didn't go through with it.

You heard him say that." Thus, in pursuing a voluntary

renunciation defense, counsel relied on defendant's statement to

support the argument that defendant ceased his sexual advances of

his own accord and not because V.P. had her period, as she

testified.

To rebut defendant's renunciation defense, the State during

summation responded "[h]e's so sexually motivated that he says he

has a problem. And he says and he agreed there's no doubt she

10 A-2651-15T2
didn't want it. But that didn't stop his attempt and it wasn't

for lack of trying." We note further that defendant's statement

that he had a bad temper and got mad during the incident was

relevant because it corroborated the victim's version of events.

In the end, we are tasked with deciding whether the portions

of the statement that were introduced at trial without objection,

but are now on appeal disputed, warrant reversal of defendant's

conviction under the plain error standard. We must thus view the

evidence presented at trial as a whole, including the entirety of

defendant's statement, to determine "whether the jury came to a

result that it otherwise might not have reached." R.K., supra,

220 N.J. at 456. Here, defendant admitted holding the victim down

by the shoulders in his attempt to have sex with her, and conceded

that she continued to resist his sexual advances on two separate

occasions. V.P. identified her underwear that was torn during the

struggle and photos of marks that were left on her neck. Defendant

admitted "taking it too far" and "realized what I was doing was

wrong." Viewing the record as a whole, even if the challenged

evidence should have been excluded, the failure by the trial court

to do so sua sponte does not meet the plain error standard.

Moreover, not only did defendant fail to object to the

redacted statement or seek additional redactions to it, he acceded

to its admission in evidence. Prior to admitting the evidence,

11 A-2651-15T2
the prosecutor represented: "The audio statement has been redacted

in certain portions and the parties have agreed to the redactions."

Under the doctrine of invited error, "[t]rial errors which were

induced, encouraged or acquiesced in or consented to by defense

counsel ordinarily are not a basis for reversal on appeal." State

v. Harper, 128 N.J. Super. 270, 277 (App. Div.), certif. denied,

65 N.J. 574 (1974).

For similar reasons, we reject defendant's argument that a

new trial is required because the trial judge failed to instruct

the jury on the reliability of defendant's statement pursuant to

Hampton, supra, 61 N.J. at 272. A trial court should provide a

"Hampton" charge "whenever a defendant's oral or written

statements, admissions, or confessions are introduced in evidence"

regardless of "[w]hether [the charge is] requested or not[.]"

State v. Jordan, 147 N.J. 409, 425 (1997) (referencing Hampton,

supra, 61 N.J. at 272). A jury "'shall be instructed that they

should decide whether . . . the defendant's [statement] is true,'"

and if they conclude that it is "'not true, then they must . . .

disregard it for purposes of discharging their function as fact

finders on the ultimate issue of guilt or innocence.'" Jordan,

supra, 147 N.J. at 419 (quoting Hampton, supra, 61 N.J. at 272).

The failure to give the charge, however, is not always

reversible error. Id. at 425, 428. A reviewing court will only

12 A-2651-15T2
reverse when the omission is clearly capable of producing an unjust

result in the context of the entire case. Id. at 425, 429. If

the statements are unnecessary to prove the defendant's guilt

"because there is other evidence that clearly establishes guilt,

or if the defendant has acknowledged the truth of his statement,"

the failure to give a Hampton charge will not require reversal.

Id. at 425-26.

Here, defendant's statement was not oral or written. Rather,

it was audio recorded, and its accuracy was not disputed at trial.

We thus discern no error, no less plain error, in the failure to

provide the jury with a Hampton charge. Moreover, during the

charge conference, defense counsel requested that the charge not

be given. Again, under the invited error doctrine, because

defendant specifically asked the trial court not to give the

charge, we discern no error in the judge's failure to do so.

III.

Defendant's remaining argument, also raised for the first

time on appeal, is that his conviction for attempted criminal

sexual contact should be reversed because the trial court gave

contradictory and confusing instructions on whether defendant was

charged with attempt or the completed crime of criminal sexual

contact.

13 A-2651-15T2
 "[A]ppropriate and proper jury charges are essential to a

fair trial." State v. Baum, 224 N.J. 147, 158-59 (2016) (quoting

State v. Reddish, 181 N.J. 553, 613 (2004)). "The trial court

must give 'a comprehensible explanation of the questions that the

jury must determine, including the law of the case applicable to

the facts that the jury may find.'" Id. at 159 (quoting State v.

Green, 86 N.J. 281, 287-88 (1981)). The alleged error must be

considered in light of "the totality of the entire charge, not in

isolation." State v. Chapland, 187 N.J. 275, 289 (2006) (citation

omitted). Where, as here, a defendant fails to object to an error

regarding a jury charge, we once again review for plain error.

State v. Funderburg, 225 N.J. 66, 79 (2016). Moreover, the failure

to "interpose a timely objection constitutes strong evidence that

the error belatedly raised [] was actually of no moment." State

v. White, 326 N.J. Super. 304, 315 (App. Div. 1999), certif.

denied, 163 N.J. 397 (2000).

Here, the judge first instructed the jury on attempt, and

then the substantive crimes of sexual assault and the lesser-

included offense of sexual contact. While perhaps not the model

of clarity, we conclude from our review of the entire charge that

the jury understood it should consider those attempted rather than

completed crimes. Moreover, the verdict sheet that the judge

explained to the jury clearly referenced the charged crime of

14 A-2651-15T2
attempted sexual assault and the lesser-included offense of

attempted sexual contact. Accordingly, we discern no plain error

in the charge that prejudiced defendant.

Affirmed.

15 A-2651-15T2