STATE OF NEW JERSEY VS. WILLIAM J. KANE (16-02-0316, MIDDLESEX COUNTY AND STATEWIDE) ( 2021 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1996-18T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
WILLIAM J. KANE,
Defendant-Appellant.
_______________________
Submitted December 16, 2020 – Decided January 26, 2021
Before Judges Fuentes, Rose, and Firko.
On appeal from the Superior Court of New Jersey, Law
Division, Middlesex County, Indictment No. 16-02-
0316.
Joseph E. Krakora, Public Defender, attorney for
appellant (Peter A. Gaudioso and Althea L. Daley,
Designated Counsel, on the brief).
Yolanda Ciccone, Middlesex County Prosecutor,
attorney for respondent (Joie D. Piderit, Assistant
Prosecutor, of counsel and on the brief).
PER CURIAM
Defendant William J. Kane appeals from a November 13, 2018 judgment
of conviction for drug offenses after trial. We affirm.
I.
We derive the following facts from the suppression motion and trial
record. On July 23, 2015, at approximately 3:00 p.m., Detectives David Guzman
and Juan DeJesus of the Perth Amboy police department were on plain-clothes
patrol in an unmarked car. Detective Guzman, who was driving the vehicle,
observed defendant driving a blue Mitsubishi Galant in the opposite direction.
Detective Guzman followed defendant because the Detective had received
information "from several confidential informants stating that [defendant] wa s
. . . distributing quantities of heroin within the City of Perth Amboy." After
making a U-turn, the Detectives surveilled defendant, who was known to
Detective Guzman from two previous encounters, 1 for five or six blocks.
Defendant pulled into a residential area, and Detective Guzman parked
one vehicle length behind him. Detective Guzman observed a man, later
identified as co-defendant Frank Kochick, approach the driver's side of
defendant's vehicle and reach through the open window. Based on his training
1
Detective Guzman previously arrested defendant on two separate occasions,
first for "having a prescription on him," and the second for a "DUI situation."
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in drug recognition and distribution and the information he received from
confidential informants, Detective Guzman suspected he observed defendant
engaged in a narcotics transaction. Detectives Guzman and DeJesus approached
defendant's vehicle with their badges displayed, and Detective Guzman yelled,
"Police." In response, defendant attempted to drive away but his car only moved
about a foot.
Upon approaching the driver's side of defendant's vehicle, Detective
Guzman observed an open black plastic bag containing eighteen glassine
envelopes of heroin stamped, "Tom & Jerry," and money on defendant's lap.
Defendant and Kochick "became a little startled." Defendant and Kochick were
placed under arrest. Following a search incident to arrest, an LG flip phone and
$362 in cash were recovered from defendant. No money or drugs were found
on Kochick.
After his arrest, Kochick gave a videotaped statement to Detective
Guzman. Kochick stated he was sitting on a friend's porch when defendant,
known to him as "Close," pulled up in his Mitsubishi. According to Kochick,
defendant is a "Spanish" male who is bald, has "no facial hair," and "always
wears a bandana." After encountering defendant on the day in question, Kochick
attempted to purchase two bags of heroin for $18 and put the money on
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defendant's lap. When the Detectives approached, the sale was aborted.
Kochick indicated that he previously purchased heroin from defendant on
approximately ten occasions.
In February 2016, a Middlesex Grand Jury returned Indictment No. 16 -
02-0316, charging defendant with third-degree possession of a controlled
dangerous substance (CDS), N.J.S.A. 2C:35-10(a) (count one); and third-degree
possession of CDS with intent to distribute, N.J.S.A. 2C:35-5 (count two).
Defendant filed a motion to suppress the videotaped statement Kochick
gave to Detective Guzman after the State informed the trial court it anticipated
Kochick would have recall issues during his trial testimony. The prosecutor
reviewed the videotaped statement with Kochick during a pre-trial conference,
and he responded, "Even though that's me, I don’t recall any of the facts." The
State sought to elicit testimony from Kochick at trial first before making an
application under Rule 803(c)(5) to have the videotaped statement played for
the jury as a recorded recollection.
The trial court conducted an in limine evidentiary hearing. In its ruling,
the court permitted Kochick to read a redacted version of his statement to the
jury as past recollection recorded under Rule 803(c)(5). The jury was provided
with a transcript of the videotaped statement simultaneously as Kochick read it
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into the record. The trial court gave a limiting instruction to the jury on this
issue.
In pertinent part, Kochick's statement explained how he bought "dope"
from the "Hispanic guy" in the Mitsubishi. Kochick also stated he threw $18 in
the window in exchange for two bags of heroin, but the police arrived before the
transaction could be completed. On cross-examination, Kochick testified he
could not recall what happened on July 23, 2015, or whether his statement to
police was truthful. He also stated that he did not want to testify at trial because
he did not remember the events of that day.
Defendant moved to suppress the evidence seized during the search of his
vehicle. The trial court held an evidentiary hearing on November 1, 2017, and
denied defendant's motion in an oral opinion with a written order.
On November 14, 2017, the jury found defendant guilty of both counts in
the indictment. On February 5, 2018, the trial court denied defendant's motion
to set aside the verdict and granted him permission to apply for entry into Drug
Court. The application was granted, and on October 25, 2018, defendant was
sentenced to five-years' probation in Drug Court.
This appeal followed, with defendant presenting the following arguments:
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POINT ONE
THE TRIAL COURT ERRED IN DENYING
DEFENDANT'S MOTION TO SUPPRESS WHERE
THE DETECTIVES DID NOT HAVE A
REASONABLE OR ARTICULABLE BASIS TO
STOP AND SEARCH THE DEFENDANT.
POINT TWO
THE TRIAL COURT ERRED IN ADMITTING THE
STATEMENT OF CO-DEFENDANT FRANK
KOCHICK AS A PAST RECOLLECTION
RECORDED AND PROVIDING THE JURY WITH
THE ACCOMPANYING TRANSCRIPT.
POINT THREE
THE TRIAL COURT ERRED IN FAILING TO
GRANT DEFENDANT'S MOTION FOR A NEW
TRIAL.
II.
We apply a highly deferential standard of review to a trial judge's
determination on a motion to suppress. State v. Gonzales, 227 N.J. 77, 101
(2016). We will
uphold the motion judge's factual findings so long as
sufficient credible evidence in the record supports those
findings. Those factual findings are entitled to
deference because the motion judge . . . has the
"opportunity to hear and see the witnesses and to have
the 'feel' of the case, which a reviewing court cannot
enjoy."
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[Ibid. (citation omitted) (quoting State v. Johnson, 42
N.J. 146, 161 (1964)).]
In State v. Nelson, 237 N.J. 540, 551 (2019), our Supreme Court
reiterated: "An appellate court should not disturb the trial court's findings
merely because 'it might have reached a different conclusion were it the trial
tribunal' or because 'the trial court decided all evidence or inference conflicts in
favor of one side' in a close case," quoting State v. Elders, 192 N.J. 224, 244
(2007). "The governing principle, then, is that '[a] trial court's findings should
be disturbed only if they are so clearly mistaken that the interests of jus tice
demand intervention and correction.'" Id. at 552. See also State v. Robinson,
200 N.J. 1, 15 (2009).
"[U]nder . . . the Fourth Amendment to the United States Constitution and
Article I, Paragraph 7 of our State Constitution, searches and seizures conducted
without warrants issued upon probable cause are presumptively unreasonable
and therefore invalid." Elders, 192 N.J. at 246. Here, the trial court found
Detective Guzman stopped defendant because:
[O]bviously he knew [defendant], had prior . . . dealings
with [defendant], he knew [defendant] was into heroin
obviously because of . . . prior encounters, one in which
a passenger was in the middle of shooting up when he
encountered [defendant].
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He knew his car and for lack of better terms,
whether it's reliable, unreliable, the word on the street
was [defendant's] dealing heroin, and he knew what—
he knew him and he knew the car. And I think an
inference can be drawn that these guys aren't going to
follow any old car. They're not going to waste their
time.
They're . . . going to invest their time and efforts
in something that they think is going to be fruitful, so
they followed him. And he pulled over on his own and
they can pull over and they can—surveil him. So far,
there's no interaction and no . . . restriction . . . of their
movement.
And they walk up to the car . . . . They see
Kochick's coming out and reaching to . . . what
appeared to perhaps be a . . . a hand-to-hand transaction
that was . . . occurring.
So, you throw all that into the mix and I think it's
safe to say that they had reasonable articulable
suspicion to detain them and—for an investigati[ve]
detention. But what happened was before there could
even be an investigati[ve] detention, [Detective]
Guzman saw that bag on [defendant's] lap with the
heroin folds in it.
So, it never got to the point whether it was going
to be an investigative detention. It went straight to an
arrest based on—plain view .
In light of the court's factual findings, we are satisfied the court correctly
denied defendant's motion to suppress. In doing so, we defer to the factual
findings made by the trial court because they are well-supported by the evidence
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presented. Nelson, 237 N.J. at 551. In view of the totality of the circumstances,
which rapidly unfolded in this case, the Detectives had probable cause to arrest
defendant. Ibid.
According to the testimony of the Detectives, found credible by the trial
court, Detective Guzman had arrested defendant in the past and received
information from reliable, confidential informants that defendant was dealing
heroin in Perth Amboy. Detective Guzman saw Kochick place his hand in the
window of defendant's vehicle and suspected a hand-to-hand narcotics
transaction was occurring based upon his knowledge of defendant in conjunction
with the informants' tips. Moreover, both defendant and Kochick "appeared
startled," and defendant attempted to drive away.
We conclude the totality of the circumstances justified the Detectives' stop
of defendant's vehicle. See State v. Bacome, 228 N.J. 94, 103 (2017) ("During
a Terry [2] motor vehicle stop, a police officer may detain individuals for a brief
period, if the stop was 'based on reasonable and articulable suspicion that an
offense . . . has been or is being committed.'"). Detective Guzman observed the
drugs in plain view on defendant's lap. In State v. Gonzalez, 227 N.J. 77 (2016),
our Supreme Court modified the plain view doctrine to eliminate the
2
Terry v. Ohio, 392 U.S. 1 (1968).
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"inadvertent" presence of the police officer required under State v. Bruzzese, 94
N.J. 210, 236-38 (1983). The Court held: "Provided that a police officer is
lawfully in the viewing area and the nature of the evidence is immediately
apparent (and other constitutional prerequisites are met), the evidence may be
seized." Gonzalez, 227 N.J. at 82 (emphasis added).
We are convinced that the evidence presented at the suppression hearing
fully supports the trial court's determination that the Detectives' stop of
defendant's vehicle and seizure of the evidence were justified under the exigent
circumstances and plain view exceptions to the warrant requirement.
III.
We next consider defendant's argument that the trial court erred in
admitting portions of Kochick's videotaped statement to the police as past
recollection recorded during the trial. Prior to trial, the court conducted a Rule
104(a) hearing. Kochick testified at the hearing that he recalled portions of the
statement he gave to police but not the entirety of the statement. The trial court
found Kochick met the test of insufficient present recollection under Rule
803(c)(5) and permitted him to read into the record only the parts of the
statements he did not recall. The transcript of Kochick's statement was not
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admitted into evidence as defendant contends on appeal but was provided to the
jury as an aid when Kochick testified.
When reviewing a trial court's decision to admit evidence, we are "limited
to examining the decision for abuse of discretion." State v. Kuropchak, 221 N.J.
368, 385 (2015) (quoting Hisenaj v. Kuehner, 194 N.J. 6, 12 (2008)). Under the
abuse of discretion standard, "an appellate court should not substitute its own
judgment for that of the trial court, unless the trial court's ruling 'was so wide of
the mark that a manifest denial of justice resulted.'" Id. at 385-86 (quoting State
v. Marrero, 148 N.J. 469, 484 (1997)). "Considerable latitude is afforded a trial
court in determining whether to admit evidence . . . ." State v. Feaster, 156 N.J.
1, 82 (1998).
Rule 803(c)(5) allows a party to read a past recorded recollection when
the witness does not remember the circumstances of what occurred or his or her
previous testimony. ("When the witness does not remember part or all of the
contents of a writing, the portion the witness does not remember may be read
into evidence . . . ."); see also State v. Cestone, 38 N.J. Super. 139, 146 (App.
Div. 1955). In State v. Gore, our Supreme Court set forth the prerequisites for
a statement to be admissible under Rule 803(c)(5). 205 N.J. 363, 376 (2011).
The witness must be shown to have an "impaired memory." Ibid. (citing State
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v. Williams, 226 N.J. Super. 94, 103 (App. Div. 1988)). After that is satisfied,
then the hearsay exception in Rule 803(c)(5) becomes applicable. The Rule
allows for the use of a written statement to refresh a witness's recollection:
A statement concerning a matter about which the
witness is unable to testify fully and accurately because
of insufficient present recollection if the statement is
contained in a writing or other record that (A) was made
at a time when the fact recorded actually occurred or
was fresh in the memory of the witness; and (B) was
made by the witness or under the witness' direction or
by some other person for the purpose of recording the
statement at the time it was made; and (C) the statement
concerns a matter of which the witness had knowledge
when it was made. When the witness does not
remember part or all of the contents of a writing, the
portion the witness does not remember may be read into
evidence but shall not be introduced as an exhibit over
objection. This exception does not apply if the
circumstances indicate that the statement is not
trustworthy.
[N.J.R.E. 803(c)(5).]
In addition, Rule 607 allows extrinsic credibility evidence to be introduced by
any party. See State v. Parker, 216 N.J. 408, 418 (2014) ("In short [Rule] 607
permits the introduction of extrinsic evidence affecting a witness'[s] credibility
regardless of whether that evidence is relevant to any other issue in the case.")
Having reviewed the record, we conclude the trial court did not abuse its
discretion in admitting a portion of Kochick's statement to the police. Kochick's
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statement met the requirements of Rule 803(c)(5). The statement was made
within thirty minutes on the day of his and defendant's arrest and concerned
matters that Kochick recalled at the time he gave his statement but did not
remember at the time of trial. The trial court noted that Kochick's inability to
recall matters that occurred on July 23, 2015, was "genuine." In addition, the
record supports the trial court's conclusion that Kochick's statement was
"trustworthy" and consistent with the observations Detective Guzman made of
his conduct. Moreover, the trial court found Kochick's answers to questions
were responsive, and he did not show any signs of duress.
We discern no abuse of discretion in allowing the State to use portions of
Kochick's police interview videotaped statement, as probative in challenging his
credibility at trial. The jury was able to consider Kochick's live testimony and
the portions of his statement given to police that he did not presently recall and
gauge his demeanor on the witness stand. Under the circumstances, the use of
Kochick's statement to the police was not an error "clearly capable of producing
an unjust result." R. 2:10-2.
IV.
Finally, defendant argues that the trial court erred in failing to grant his
motion for a new trial under Rule 3:20-1. During its opening statement, the
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prosecutor mentioned that Detectives Guzman and DeJesus were conducting
"surveillance" of defendant. In defendant's view, Detective Guzman's testimony
regarding this prior knowledge and surveillance of defendant, coupled with the
use of Kochick's redacted transcript, warrants a new trial. We find no merit to
defendant's argument.
Rule 3:20-1 provides that a trial court may not set aside a jury's verdict
and order a new trial "unless, having given due regard to the opportunity of the
jury to pass upon the credibility of the witnesses, it clearly and convincingly
appears that there was a manifest denial of justice under the law." Similarly, a
trial court's ruling on a defendant's new trial motion "shall not be reversed unless
it clearly appears there was a miscarriage of justice under the law." R. 2:10-1;
State v. Sims, 65 N.J. 359, 373-74 (1974).
"The 'semantic' difference between 'miscarriage of justice' and 'manifest
denial of justice under the law' is an 'oversight and should not be construed as
providing for a different standard in criminal cases at the trial level than that
applicable to appellate review . . . .'" State v. Armour, 446 N.J. Super. 295, 306
(App. Div. 2016) (quoting Pressler & Verniero, Current N.J. Court Rules, cmt.
2 on R. 3:20-1 (2021)). The Supreme Court has "explained that a 'miscarriage
of justice' can arise when there is a 'manifest lack of inherently credible evidence
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to support the finding,' when there has been an 'obvious overlooking or und er-
valuation of crucial evidence,' or when the case culminates in 'a clearly unjust
result.'" Hayes v. Delamotte, 231 N.J. 373, 386 (2018) (quoting Risko v.
Thompson Muller Auto. Grp., Inc., 206 N.J. 506, 521-22 (2011)).
The decision whether to grant or deny a motion for a new trial is left to
the trial judge's sound discretion, and we should interfere with the exercise of
that discretion only when "a clear abuse has been shown." State v. Brooks, 366
N.J. Super. 447, 454 (App. Div. 2004) (quoting State v. Russo, 333 N.J. Super.
119, 137 (App. Div. 2000)).
Here, the trial court noted the Detectives improvidently testified as to their
surveillance of defendant and that Detective Guzman told Detective DeJesus he
recognized defendant. However, the trial court concluded the State's reference
to surveillance did not rise to the level of prejudice that would warrant a new
trial. Moreover, defense counsel opted against a curative instruction given that
the remark was, in his own description, "fleeting."
A trial court's denial of a defendant's motion may not be reversed on
appeal unless "it clearly appears that there was a miscarriage of justice under
the law." R. 2:10-1; Sims, 65 N.J. at 373-74. It is also well-established that a
trial court may not "set aside the verdict of the jury as against the weight of the
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evidence unless, having given due regard to the opportunity of the jury to pass
upon the credibility of the witnesses, it clearly and convincingly appears that
there was a manifest denial of justice under the law." R. 3:20-1.
Given the totality of the evidence and reasonable inferences that the jury
could have drawn from the evidence, we conclude that defendant's motion for a
new trial was properly denied. Detective Guzman's testimony was relevant on
surveillance to explain to the jury why the Detectives were in the neighborhood
when they observed the hand-to-hand drug transaction. And, the prosecutor
made no reference to surveillance during closing arguments. The trial court
found from its "feel of the case" that the comments and testimony had no
prejudicial impact on the outcome of the case. See Hayes 231 N.J. at 386
(citations omitted). These findings are supported in the trial record and were
not erroneous.
Affirmed.
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