STATE OF NEW JERSEY VS. ROBERT LYON (18-09-0580, SOMERSET 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NOT FOR PUBLICATION WITHOUT THE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-4583-18
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
ROBERT LYON,
a/k/a BOB LYON,
ROBERT P. LYON,
Defendant-Appellant.
__________________________
Submitted May 11, 2021 – Decided July 13, 2021
Before Judges Moynihan and Gummer.
On appeal from the Superior Court of New Jersey, Law
Division, Somerset County, Indictment No. 18-09-
0580.
Joseph E. Krakora, Public Defender, attorney for
appellant (Laura B. Lasota, Assistant Deputy Public
Defender, of counsel and on the brief).
Michael H. Robertson, Somerset County Prosecutor,
attorney for respondent (Amanda Frankel, Assistant
Prosecutor, of counsel and on the brief).
PER CURIAM
Defendant Robert Lyon appeals from a judgment of conviction entered
after a jury found him guilty of fourth-degree violation of community
supervision for life (CSL), N.J.S.A. 2C:43-6.4(d), arguing:
POINT I
THE TRIAL COURT'S FAILURE TO GIVE A
SPECIFIC UNANIMITY INSTRUCTION AS TO
WHICH [CSL] CONDITION DEFENDANT
VIOLATED REQUIRES REVERSAL OF
DEFENDANT'S CONVICTION.
POINT II
THE TRIAL COURT'S FAILURE TO PROVIDE A
N.J.R.E. 404(B) LIMITING INSTRUCTION AS TO
THE JURY'S CONSIDERATION OF OTHER BAD
ACTS EVIDENCE REQUIRES REVERSAL OF
DEFENDANT'S CONVICTION.
Unpersuaded, we affirm.
Defendant's CSL conditions required him to report to his parole officer
and submit to drug and alcohol testing as instructed by his parole officer. On
February 5, 2018, he refused to submit to an oral drug test ordered by senior
parole officer Gina Cusumano during a home visit at defendant's Manville
apartment. Consequently, defendant was instructed to report the next day to the
parole office in New Brunswick to discuss his noncompliance. Defendant
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advised Cusumano he would not report because he lacked transportation. He
continued to refuse even after Cusumano offered to transport him to and from
the parole office which was approximately five miles from defendant's
residence. Defendant did not report to the parole office or contact Cusumano
on February 6, 2018.
Cusumano attempted four additional visits at defendant's residence on
February 22, February 28, March 8 and March 14, 2018. Each time, defendant
did not answer his door. Cusumano testified on each occasion she left a form
notice—containing the date of the attempted visit, defendant's new reporting
date (the day following each visit) and time at the district parole office, and a
warning that his failure to report would constitute a CSL violation—"in the
crease" of the front door of defendant's residence which was protected by a storm
door. Defendant never reported to the parole office as instructed in each of the
four notices. He was charged with violating CSL and was arrested on a warrant.
The one-count indictment against defendant alleged he violated CSL "by
failing to report to his parole officer and/or failing to submit to drug and alcohol
testing." Defendant argues his right to due process and a fair trial were violated
because the trial court did not parse the bases for the violation when it instructed
the jury. He contends the court should have given a specific unanimity
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instruction requiring the jury to render a separate verdict on each of the
allegations: failure to report and failure to submit to substance testing; and
structured the verdict sheet separating those two allegations instead of asking
the jury to render a decision on the single question that read in part: "The
Indictment charges that defendant ROBERT LYON, between February 5, 2018
and April 26, 2018, in Manville, knowingly violated the terms and conditions of
community supervision for life by failing to report to his parole officer and/or
failing to submit to drug and alcohol testing without good cause."
We review defendant's claim for plain error, R. 2:10-2, because he did not
object to the jury charge or the verdict sheet. Reversal is required "only if the
[alleged] error was 'clearly capable of producing an unjust result,'" State v.
McGuire, 419 N.J. Super. 88, 106 (App. Div. 2011) (quoting R. 2:10-2), where
the defendant presents evidence "sufficient to raise 'a reasonable doubt . . . as to
whether the error led the jury to a result it otherwise might not have reached,'"
State v. Funderburg, 225 N.J. 66, 79 (2016) (alteration in original) (quoting State
v. Jenkins, 178 N.J. 347, 361 (2004)). "The mere possibility of an unjust result
is not enough" to constitute plain error. Ibid. Rather, the defendant must
establish that the error "was clear and obvious and that it affected [his]
substantial rights." McGuire, 419 N.J. Super. at 107.
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Plain error in the context of jury charges is "[l]egal impropriety in the
charge prejudicially affecting the substantial rights of the defendant and
sufficiently grievous to justify notice by the reviewing court and to convince the
court that of itself the error possessed a clear capacity to bring about an unjust
result." State v. Camacho, 218 N.J. 533, 554 (2014) (alteration in original)
(quoting State v. Adams, 194 N.J. 186, 207 (2008)). We "must not look at
portions of the charge alleged to be erroneous in isolation." State v. McKinney,
223 N.J. 475, 494 (2015). Instead, "[t]he charge must be read as a whole in
determining whether there was any error." State v. Torres, 183 N.J. 554, 564
(2005); see also State v. Jordan, 147 N.J. 409, 422 (1997). In addition, "[t]he
error must be considered in light of the entire charge and must be evaluated in
light 'of the overall strength of the State's case.'" State v. Walker, 203 N.J. 73,
90 (2010) (quoting State v. Chapland, 187 N.J. 275, 289 (2006)). Defendant's
failure to object to the instruction "is considered a waiver to object to the
instruction on appeal." State v. Maloney, 216 N.J. 91, 104 (2013) (first citing
R. 1:7-2; and then citing Torres, 183 N.J. at 564).
Our review is further focused because, although specific unanimity
instructions—mandating unanimous agreement by the jurors "on the facts
underlying the guilty verdict"—should be provided "when there is a specific
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request for those instructions and where there exists a danger of a fragmented
verdict, the failure to provide a specific unanimity instruction in the absence of
such a request will not necessarily constitute reversible error." State v. Gandhi,
201 N.J. 161, 192-93 (2010) (citation omitted). "The core question is, in light
of the allegations made and the statute charged, whether the instructions as a
whole [posed] a genuine risk that the jury [would be] confused." State v. Parker,
124 N.J. 628, 638 (1991) (alterations in original) (citation and internal quotation
marks omitted). Our analysis requires us to determine "whether the acts alleged
are conceptually similar or are 'contradictory or only marginally related to each
other,' and whether there is a 'tangible indication of jury confusion.'" Gandhi,
201 N.J. at 193 (quoting Parker, 124 N.J. at 639).
We discern no plain error in the trial court's jury charge. Taken as a whole,
the instructions did not have the "clear capacity to bring about an unjust result."
Camacho, 218 N.J. at 554 (citation omitted).
First, although defendant failed to submit to drug and alcohol testing only
once, during the February 5, 2018 visit, and failed to report the day after and on
the other days he was noticed to report, all were CSL violations that were proved
chiefly by the testimony of one witness: Cusumano. The acts were not just
"marginally related to each other." Gandhi, 201 N.J. at 193 (quoting Parker, 124
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N.J. at 639). Cusumano made clear to defendant what he was required to do.
The trial evidence established defendant had refused to comply.
Not only was there no "tangible indication of jury confusion," Gandhi,
201 N.J. at 193 (quoting Parker, 124 N.J. at 639), the charge as a whole and the
trial court's response to a question posed by the jury during deliberations dispel
defendant's argument that there was a possibility he was convicted by less than
a unanimous verdict. We note the trial court instructed the jury that its verdict
had to be unanimous. As to the crime itself, although both allegations were
presented to the jury as they were indicted, the trial court instructed:
The second element[1] that the State must prove beyond
a reasonable doubt is that the [d]efendant knowingly
violated a condition imposed upon him as a result of the
special sentence, as imposed by law.
....
Conditions imposed on a [d]efendant by the special
sentence of [CSL] include one, a requirement that the
[d]efendant report to the assigned parole officer as
instructed; two, the requirement that the [d]efendant
submit to drug and alcohol testing at any time as
directed by the assigned parole officer.
1
The first and third elements of the offense are not germane to the issues on
appeal.
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Notwithstanding the assistant prosecutor's comment to the jury during
summation that "some of you can find that . . . [d]efendant failed to report to his
parole officer, and some of you can find that he failed to take the drug test[;]
[y]ou don't all have to agree that he violated one particular condition, as long as
you all agree that at least one condition was violated[,]" the jury was told that
the State had to prove defendant knowingly violated "a" condition; and both
alleged failures were separately listed by the court. The jury was told to
disregard any of counsels' comments on the law if they conflicted with the
court's charge. The jury is presumed to have followed that instruction. State v.
Smith, 212 N.J. 365, 409 (2012).
The second question posed by the jury during deliberations, as read into
the record by the trial court, asked: "[T]he verdict sheet states [']and/or.['] Do
we need to find guilty or not guilty on both conditions or can it be only one
condition?" Both counsel voiced prior approval of the court's answer: "And the
answer is yes, it can only be one condition."
The jury never exhibited any confusion. To the contrary, its question
manifested that it was separately considering each act, and the trial court
confirmed the jury could base its guilty verdict on a violation of just one
condition, not both. The jury is also presumed to have followed that instruction.
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Ibid. About five minutes later, the jury reported it had reached its verdict. The
instructions as a whole did not pose "a genuine risk that the jury [would be]
confused." Parker, 124 N.J. at 638 (alteration in original) (citation and internal
quotation marks omitted).
We also recognize the State's overwhelming proofs negated any chance
that the jury verdict was unjust. Not only did Cusumano directly tell defendant
to report on February 6—offering to drive defendant to the office—and later
leave the written notice forms in defendant's door, which were never there when
she returned on February 28, March 8 and March 14, 2018, she left phone
messages for defendant to contact her, drove around defendant's neighborhood
looking for defendant, enlisted a Manville detective to look for defendant and
noticed during her last visit a FedEx package had been delivered to defendant at
his residence indicating he was still living there.
There is no factual or legal basis to conclude that the absence of a
unanimity charge under these circumstances was "clearly capable of producing
an unjust result." R. 2:10-2.
Defendant also claims he was denied his due-process and fair-trial rights
because the trial court did not provide a limiting instruction per N.J.R.E. 404(b)
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after his counsel elicited testimony from Cusumano about his prior failures to
comply with CSL conditions.
Defendant, however, never moved the court to admit the evidence under
N.J.R.E. 404(b) and never requested a limiting instruction. As said, defendant
did not object to the trial court's final charge. "The absence of an objection
suggests that trial counsel perceived no error or prejudice, and, in any event,
prevented the trial [court] from remedying any possible confusion in a timely
fashion." Bradford v. Kupper Assocs., 283 N.J. Super. 556, 573-74 (App. Div.
1995); see also State v. Gaikwad, 349 N.J. Super. 62, 75 (App. Div. 2002).
Again, we will typically reverse under such circumstances "only if the
[alleged] error was 'clearly capable of producing an unjust result,'" McGuire,
419 N.J. Super. at 106 (quoting R. 2:10-2), where the defendant presents
evidence "sufficient to raise a reasonable doubt as to whether the error led the
jury to a result it otherwise might not have reached," id. at 106-07 (quoting State
v. Taffaro, 195 N.J. 442, 454 (2008)). In other words, he must establish that the
error "was clear and obvious and that it affected [his] substantial rights." Id. at
107.
When our Supreme Court reviewed the history and purpose of N.J.R.E.
404(b)'s predecessor, it recognized the two faces of bad-act evidence proffered
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under the rule: "simultaneously . . . highly probative and extremely prejudicial.
. . . Despite its probative worth, other-crime evidence offered solely to prove
criminal disposition is excluded under the [r]ule, as at common law: The
motivating policies are said to be to avoid confusion, unfair surprise and
prejudice." State v. Stevens, 115 N.J. 289, 300 (1989) (citations and internal
quotation marks omitted).
Those tenets were not violated when defense counsel questioned
Cusumano about defendant's prior experience on CSL. Obviously, counsel did
not attempt to demonstrate defendant's proclivity to violate CSL's conditions.
Under cross-examination, Cusumano admitted defendant had never tested
positive for controlled dangerous substances. When asked if he ever tested
positive for consuming alcohol, the following colloquy ensued:
[CUSUMANO]: He didn't test positive, but, and this is
way back, an officer had observed him at a bar.
[DEFENSE COUNSEL]: Okay.
[CUSUMANO]: And told him that he shouldn't be
there and that he should leave.
[DEFENSE COUNSEL]: Okay. The officer, if you
know, who made this observation, did you learn that
while [defendant] had been in the bar, was also
consuming an alcoholic drink?
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[CUSUMANO]: I don't, I don't—it's my recollection
that they never confirmed what it was, in fact, that he
was drinking. The condition, the way it reads that
you're not to frequent an establishment whose primary
purpose is the sale of alcohol. And he was at a
restaurant, but sitting at the bar.
[DEFENSE COUNSEL]: Okay.
[CUSUMANO]: So the officer felt that it was
inappropriate. But again, he wasn't violated for it, it
was more like an admonishment.
[DEFENSE COUNSEL]: So basically get off that bar
stool and go into the restaurant?
[CUSUMANO]: He, yeah, right.
It would have been more prudent if that hearsay—even about an incident
in which Cusumano admitted there was no proof defendant was drinking—and
some other testimony about defendant's violations that followed, had been
excluded. But it set the tone for defense counsel's further questioning about
defendant's violations that were never criminally charged. Further cross-
examination adduced defendant's failures to report and attend a counseling
program. Like the incident in the bar, however, cross-examination also revealed
mitigating evidence. Cusumano testified there was no direct public
transportation between defendant's residence and the parole office in another
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county, transportation was difficult and there were times defendant "failed to
report due to transportation issues."
Defense counsel utilized that testimony during his summation arguing in
the "twelve-plus years" defendant had been subject to CSL, "[h]e never tested
positive for drugs or alcohol" and "[t]he worst . . . Cusumano could say was that
he was observed sitting at a bar, in a bar[-]restaurant"; Cusumano could not say
defendant was drinking alcohol; and "he was instructed to leave the bar and . . .
go to the restaurant section, and he did." Counsel also highlighted the circuitous,
"complicated" and costly public transportation route defendant had to take to
travel to the parole office. Counsel pointed to Cusumano's long history of
supervising defendant, dating back to 2006, and blamed Cusumano—who had
never before filed a criminal complaint against defendant—of "demanding
things of [defendant] that he couldn't do" despite knowing his "track record."
And, in a case where the State's proofs of defendant's non-compliance were so
clear, counsel followed a strategy of attacking the bias of the person who was
proffering the bulk of that evidence, Cusumano: "I think it also came through
that she didn't like the guy. And I think that that can play a role in her violating
him."
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Objections to other-wrongs or bad-acts evidence generally do not warrant
reversal if that evidence was elicited consciously by the objecting party on cross-
examination. See State v. Brown, 138 N.J. 481, 531-32 (1994), overruled on
other grounds by State v. Cooper, 151 N.J. 326 (1997). "Trial errors . . . induced,
encouraged or acquiesced in or consented to by defense counsel" will not
ordinarily be grounds for reversal as plain error. State v. Harper, 128 N.J. Super.
270, 277 (App. Div. 1974). Counsel may not "condemn the very procedure he
sought and urged, claiming it to be error and prejudicial." Ibid. (citations
omitted).
Thus, where the invited error did not demonstrably
impair a defendant's ability to maintain a defense on the
merits or where the after-criticized judicial action was
reasonably thought to secure a trial or tactical
advantage for the defendant, it has not been considered
so egregious as to mandate a reversal on appeal.
[Ibid. (citations omitted).]
"The invited-error doctrine is intended to 'prevent defendants from manipulating
the system' and will apply 'when a defendant in some way has led the court into
error' while pursuing a tactical advantage that does not work as planned." State
v. Williams, 219 N.J. 89, 100 (2014) (quoting State v. A.R., 213 N.J. 542, 561-
62 (2013)).
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The evidence defendant complains of was neither introduced by the State
nor sanctioned by the trial court. Perhaps the court should have intervened to
strike the hearsay testimony, but defense counsel was pursuing a strategy to
counter the State's substantial evidence that defendant failed to comply on
numerous occasions with the CSL conditions. Moreover, defendant never
requested a limiting instruction or informed the court he sought to use
Cusumano's testimony for a limited purpose; nor did he specify that purpose.
The doctrine of invited error bars any claim of prejudice. Defendant has
not demonstrated "that the error was so egregious as to cut mortally into his
substantive rights" so as to require reversal. State v. Ramseur, 106 N.J. 123,
282 (1987) (citation and internal quotation marks omitted). We see no plain
error, particularly because of the overwhelming evidence of guilt. See State v.
Prall, 231 N.J. 567, 571-72 (2018) (holding defendant's convictions would be
affirmed despite absence of limiting instruction, use of bad-act evidence during
summations and admission of hearsay because errors "were not capable of
producing an unjust result because of the overwhelming weight and quality of
the evidence against defendant"). As such, we see no reason to disturb the jury's
verdict. See State v. Marshall, 123 N.J. 1, 93 (1991) ("[E]xcept in the most
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extreme cases, strategic decisions made by defense counsel will not present
grounds for reversal on appeal[.]").
Affirmed.
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