State of New Jersey v. Stephanie Hand ( 2024 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2580-22
STATE OF NEW JERSEY,
Plaintiff-Respondent,
APPROVED FOR PUBLICATION
v. November 8, 2024
APPELLATE DIVISION
STEPHANIE HAND,
Defendant-Appellant.
Submitted October 17, 2024 – Decided November 8, 2024
Before Judges Rose, DeAlmeida and Puglisi.
On appeal from the Superior Court of New Jersey,
Law Division, Essex County, Indictment No. 14-02-
0007.
Jennifer Nicole Sellitti, Public Defender, attorney for
appellant (Mark Zavotsky, Designated Counsel, on the
brief).
Matthew J. Platkin, Attorney General, attorney for
respondent (Deborah Bartolomey, Deputy Attorney
General, of counsel and on the brief).
The opinion of the court was delivered by
DeALMEIDA, J.A.D.
Defendant Stephanie Hand appeals from the March 27, 2023 Law
Division order denying her petition for post-conviction relief (PCR) without an
evidentiary hearing. At issue is whether the Supreme Court's holding in State
v. Jackson, 243 N.J. 52 (2020), should be given full retroactive application.
We conclude that the holding in Jackson does not apply to convictions, such as
defendant's, for which direct appellate review was complete when the opinion
in Jackson was issued. We therefore affirm the PCR court's order dismissing
defendant's petition.
I.
In 2014, a grand jury indicted defendant and two co-defendants, Thomas
D'Anna and Julio Concepcion, for their participation in a mortgage fraud
scheme involving two fraudulent real estate sales transactions. The indictment
charged the defendants with: (1) first-degree conspiracy to commit money
laundering and/or theft by deception, N.J.S.A. 2C:5-2, N.J.S.A. 2C:21-
25(b)(2)(a), and N.J.S.A. 2C:20-4(a) (count one); (2) first-degree money
laundering, N.J.S.A. 2C:21-25(b)(2)(a) (count two); and (3) second-degree
theft by deception, N.J.S.A. 2C:20-4(a) (count three).
The transactions concerned properties owned by D'Anna on which there
were outstanding mortgages. The sales prices exceeded the mortgage
balances. Defendant, then a licensed attorney, acted as the closing agent. She
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lied on Department of Housing and Urban Development (HUD) closing
statements by, among other things, falsely claiming to have received deposits
from the purchasers and to have placed those deposits in her escrow account.
In fact, the purchasers did not exist. Concepcion had obtained stolen identities
and created fraudulent financial documents to obtain loans to straw purchasers
to finance contracts to buy D'Anna's properties.
At the closings, a portion of the loan proceeds were used to satisfy the
existing mortgages on D'Anna's properties. The remainder of the loan
proceeds were distributed to D'Anna and Concepcion, who submitted fake
invoices for renovations he falsely claimed to have performed at the properties.
While defendant did not receive any of the loan proceeds, she was paid for
acting as counsel at the closings. After making a few payments on the loans in
the names of the straw purchasers, D'Anna and Concepcion abandoned the
loans, allowing them to default, which ultimately resulted in foreclosures.
Defendant was tried separately. She denied having engaged in a
conspiracy and testified she was hired to represent the purchasers in the two
transactions unaware of the underlying scheme, stolen identities, fraudulent
financial documents, or fraudulent renovation invoices. D'Anna entered a
guilty plea to second-degree conspiracy. In exchange for the State's
recommendation that he receive a probationary sentence, D'Anna agreed to
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testify at defendant's trial. At trial, D'Anna denied knowing Concepcion had
obtained stolen identities or created fraudulent financial documents. He
admitted, however, he and defendant entered into an agreement to lie on the
HUD statements in order to secure the two loans necessary to complete the
closings.
Defense counsel sought to cross-examine D'Anna about the sentencing
exposure he faced when he entered into his plea agreement. Specifically, he
attempted to question D'Anna about the potential twenty-year maximum prison
sentence he faced on the charges in the indictment, as well as a third fraudulent
transaction for which he, but not defendant, was indicted. The court, however,
limited cross-examination of D'Anna to the seven-year prison sentence
recommended by the State in its first plea offer. The court noted D'Anna, as a
first-time offender, was unlikely to receive the maximum sentence on all
charges if convicted at trial. Thus, the court concluded, reference to a
potential twenty-year maximum prison sentence would not reflect D'Anna's
actual sentencing exposure and could mislead the jury.
In addition, the court expressed concern that questions about D'Anna's
maximum sentencing exposure would inform the jury of defendant's maximum
sentencing exposure because the two were charged with the same crimes. The
court permitted defense counsel to explore all other aspects of D'Anna's plea
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agreement, including that his counsel negotiated the State's initial offer from a
seven-year prison term to a probationary sentence.
Concepcion also testified at trial. He admitted he was involved in the
mortgage fraud and said D'Anna was a full-fledged co-conspirator from the
formation of the scheme. Concepcion testified that he had never met
defendant and did not conspire with her.
The jury convicted defendant of lesser-included offenses charged in each
count of the indictment: second-degree conspiracy on count one; second-
degree money laundering on count two; and second-degree theft by deception
on count three. Defendant moved for a new trial, arguing, among other things,
that the court's limitation on her cross-examination of D'Anna resulted in a
miscarriage of justice. The trial court denied the motion and sentenced
defendant to an aggregate four-year term of imprisonment.
On direct appeal, defendant argued, in part, that her Sixth Amendment
rights were infringed when the trial court prohibited her counsel from
questioning D'Anna about his full sentencing exposure prior to accepting the
plea agreement. We rejected defendant's Sixth Amendment argument:
The court balanced defendant's right to confront the
witness on his expectation of favorable treatment from
the State in return for his testimony with the State's
right to be free from prejudicial and potential[ly]
confusing evidence regarding the maximum exposure
on the charges D'Anna originally faced. As the court
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concluded, D'Anna did not realistically face a twenty-
year sentence. The State initiated plea negotiations by
offering him a recommended seven-year term. In
addition, as a first-time offender [D'Anna] was
unlikely to receive the maximum sentence on each of
the counts were he to have been found guilty at trial.
The limitation imposed by the court did not prevent
defendant from using cross-examination for the
desired purpose of questioning D'Anna's credibility by
suggesting the State may have influenced his
testimony through favorable resolution of his pending
criminal charges.
[State v. Hand, No. A-0516-17 (App. Div. Aug. 14,
2019) (slip op. at 18).]
We reversed defendant's conviction of money laundering on other
grounds, affirmed her remaining convictions, and remanded for resentencing.
Id. at 19. On May 26, 2020, the trial court resentenced defendant.
On July 2, 2020, the Supreme Court issued its opinion in Jackson. In
that case, the Court addressed "whether a defendant facing the same charges as
a cooperating witness should be barred from exploring that adverse witness's
sentencing exposure." 243 N.J. at 58. Defense counsel in Jackson sought to
elicit testimony that the cooperating co-defendant would have been exposed to
a sentencing range of three to five years when the State offered to recommend
a prison term of three years in exchange for his cooperation and testimony
against Jackson. Ibid. It was later determined that the cooperating co-
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defendant was extended-term eligible due to prior convictions and faced up to
ten years in prison had the prosecutor sought the extended term. Id. at 70.
The court ultimately urged modification of the plea agreement, resulting
in the State agreeing to recommend a probationary term conditioned on 180
days in jail. Ibid. The trial court precluded questioning regarding the co-
defendant's maximum exposure because it believed the jury would infer that
Jackson faced the same exposure and be more reluctant to convict him as a
result. Id. at 59, 62. The trial court thus permitted testimony only about the
length of the sentences recommended in the initial plea offer and the final
agreement, not the maximum exposure. Id. at 59.
Before the Supreme Court, Jackson argued the limitation on cross-
examination of the cooperating co-defendant deprived him of his Sixth
Amendment right to confrontation. Ibid. In considering this argument, the
Court weighed defendant's confrontation right against the concern the jury
would find the defendant not guilty if it inferred his sentencing exposure from
the elicited testimony. Id. at 69. The Court held "the jury should have had full
access to [the cooperating co-defendant's] plea agreement history through the
defense counsel's unfettered examination of that history" and found the cross -
examination limitations violated Jackson's rights to confrontation and a fair
trial. Id. at 59, 74.
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Instead of limiting the cross-examination, the Court explained, the trial
court should have instructed the jury "not to speculate about or consider a
defendant's potential sentence when deciding whether the State has proven the
charges alleged beyond a reasonable doubt." Id. at 71. The Court did "not
favor a process in which trial judges perform a generalized gatekeeping
function and try to decide whether cross-examination would adequately convey
enough information about a witness's credibility without allowing questions
about the witness's sentencing range." Id. at 72.
The Court, however, noted "there is still a place for objections under
N.J.R.E. 403[,]" ibid., which provides that "relevant evidence may be excluded
if its probative value is substantially outweighed by the risk of . . . [u]ndue
prejudice, confusion of issues, or misleading the jury . . . ." N.J.R.E. 403. For
example, the Court noted a trial court "could properly curtail" cross -
examination suggesting "a witness would receive consecutive sentences on
multiple counts that would instead merge at sentencing . . . ." Ibid.
The Court went on to consider whether the error was harmless beyond a
reasonable doubt. Id. at 72-74. The Court found that if the jury had known the
co-defendant was actually facing an extended term of ten years but negotiated
a probationary term in exchange for his testimony, it might have believed this
key witness for the State was biased. Id. at 73-74. The Court emphasized the
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defendant had a right to ask the co-defendant about his subjective
understanding of his maximum sentencing exposure and thereby fully
demonstrate the co-defendant's potential bias. Id. at 73. The Court could not
conclude beyond a reasonable doubt that the limitation on the cross-
examination was harmless. Id. at 74. Because the Confrontation Clause error
denied Jackson a fair trial, his conviction was reversed, and the case was
remanded for a new trial. Ibid.
On September 9, 2020, defendant moved for reconsideration of our
opinion affirming in part and reversing in part her convictions. She argued the
holding in Jackson applied retroactively and warranted reversal of her
convictions in light of the limitations imposed on her cross-examination of
D'Anna. We denied the motion, noting defendant could assert a claim for
retroactive application of Jackson through a petition for PCR. State v. Hand,
No. A-0516-17 (App. Div. Oct. 15, 2020). 1
Defendant thereafter filed a PCR petition seeking retroactive application
of the holding in Jackson. On March 27, 2023, the PCR court issued a written
decision denying defendant's petition. The court accepted the parties'
1
The parties' briefs state defendant sought to cross-examine D'Anna with
respect to a potential maximum sentence of fifty years. Our decision on direct
appeal refers to a potential maximum sentence of twenty years. In either case,
our analysis of the retroactive effect of Jackson is the same.
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agreement that Jackson announced a new rule with respect to the cross-
examination of a cooperating co-defendant. In addition, the court concluded
the new rule was designed to enhance the reliability of the truth-finding
process.
The court found, however, the rule Jackson replaced did not
substantially impair the accuracy of the truth-finding process because
defendants had the opportunity to cross-examine cooperating co-defendants
about the terms of their plea agreements, albeit in a more limited manner than
is available under Jackson. As an example, the PCR court noted defendant's
cross-examination of D'Anna under the old rule elicited detailed testimony
about his plea agreement, including multiple mentions that his testimony was a
key condition of the State's offer to reduce his sentence from a recommended
seven years in prison to probation. Through this testimony, the court found,
defendant was able to sufficiently explore D'Anna's possible bias and
motivation to testify falsely.
The PCR court also found there was little likelihood of untrustworthy
evidence admitted under the old rule because cross-examination under the old
rule, while more limited than permitted under the new rule, did not elicit
untrue information. In addition, the court found the State had long relied on
the old rule, given the long-standing practice of permitting limitations on
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cross-examination of cooperating co-defendants with respect to their
sentencing exposure.
Finally, the court found complete retroactive application of Jackson
would have a significant detrimental effect on the administration of justice.
The record does not establish the number of convictions to which Jackson
would apply if fully retroactive. However, the PCR court found the use of
cooperating witnesses is common in multi-defendant cases, and longstanding,
noting the issue was addressed by the Supreme Court as early as 1954 in State
v. Spruill, 16 N.J. 73, 75-81. This factor, the court found, weighed against
complete retroactivity.
After weighing these factors, the PCR court concluded complete
retroactive application of Jackson was not warranted. In light of that
conclusion, the court denied defendant's petition. 2 A March 27, 2023 order
memorialized the PCR court's decision.
This appeal followed. Defendant argues:
2
The PCR court also concluded that even if Jackson was retroactively applied
to defendant's convictions she would not be entitled to relief. The court found
the imposition of limitations on D'Anna's cross-examination was harmless
error "considering the overwhelming evidence of the defendant's guilt." The
court noted the State called several witnesses other than D'Anna and
introduced documents establishing beyond a reasonable doubt that defendant
served as the closing agent for the transactions and falsified the HUD closing
statements.
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THE PCR COURT ERRED WHEN IT DENIED
DEFENDANT'S APPLICATION TO HAVE THE
NEW RULE OF LAW ANNOUNCED IN STATE V.
JACKSON, 243 N.J. 52 (2020)[,] APPLIED
RETROACTIVELY TO THE CROSS-
EXAMINATION OF THE STATE'S ONLY
WITNESS TO TESTIFY AS TO CULPABILITY ON
THE PART OF THE DEFENDANT.
II.
Under Rule 3:22-2(a), a defendant is entitled to PCR if there was a
"[s]ubstantial denial in the conviction proceedings of defendant's rights under
the Constitution of the United States or the Constitution or laws of the State of
New Jersey . . . ." "A petitioner must establish the right to such relief by a
preponderance of the credible evidence." State v. Preciose, 129 N.J. 451, 459
(1992). "To sustain that burden, specific facts" which "would provide the
court with an adequate basis on which to rest its decision" must be articulated.
State v. Mitchell, 126 N.J. 565, 579 (1992).
We review a judge's decision to deny a PCR petition without an
evidentiary hearing for abuse of discretion. State v. Brewster, 429 N.J. Super.
387, 401 (App. Div. 2013) (citing State v. Marshall, 148 N.J. 89, 157-58
(1997)). We review the court's legal conclusion de novo. State v. Harris, 181
N.J. 391, 419 (2004).
Defendant argues she is entitled to PCR because her Sixth Amendment
rights, as recognized in Jackson, were curtailed by the trial court's limitations
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on her cross-examination of D'Anna. To benefit from the holding in Jackson,
defendant must establish that the decision has retroactive effect.
To determine whether and to what extent a holding will be applied
retroactively, we must first decide if it "announced" "a new rule of law." State
v. G.E.P., 243 N.J. 362, 382 (2020) (quoting State v. Feal, 194 N.J. 293, 307
(2008)). "A new rule exists if 'it breaks new ground or . . . if the result was not
dictated by precedent existing at the time the defendant's conviction became
final.'" Feal, 194 N.J. at 308 (quoting State v. Lark, 117 N.J. 331, 339 (1989)
(internal quotations omitted)). "Obviously, where a new rule is not at issue, a
retroactivity inquiry is unnecessary." Ibid.The parties agree that Jackson created a new rule with respect to the
scope of cross-examination of a cooperating co-defendant. We see no reason
to disagree with the parties' position.
In light of the determination Jackson announced a new rule, "[t]here are
four options: (1) prospective application, (2) application 'in future cases and in
the case in which the rule is announced,' (3) '"pipeline retroactivity," rendering
it applicable in all future cases, the case in which the rule was announced, and
any cases still on direct appeal,' or (4) 'complete retroactive effect.'" G.E.P.,
243 N.J. at 386 (quoting State v. Knight, 145 N.J. 233, 249 (1996) (internal
quotations omitted)).
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Because defendant's direct appeal of her convictions was completed
prior to the issuance of Jackson, she is entitled to relief only if complete
retroactivity applies to its holding. Three questions influence our
determination of the extent to which Jackson will apply retroactively: "(1) the
purpose of the rule and whether it would be furthered by a retroactive
application, (2) the degree of reliance placed on the old rule by those who
administered it, and (3) the effect a retroactive application would have on the
administration of justice." State v. Henderson, 208 N.J. 208, 300 (2011)
(quoting Knight, 145 N.J. at 251). "We do not accord those factors 'equal
weight.'" G.E.P., 243 N.J. at 386 (quoting Henderson, 208 N.J. at 301). "The
first factor, the purpose of the new rule, is often the pivotal consideration."
State v. Burstein, 85 N.J. 394, 406 (1981).
A new rule's purpose falls into one of three categories. "First, 'a new
rule may be intended solely to deter police misconduct. In such a case,
retroactivity would almost certainly be denied because the new rule's deterrent
purpose would not be advanced by retroactive application to past misconduct.'"
State v. J.A., 398 N.J. Super. 511, 520 (App. Div. 2008) (quoting State v.
Purnell, 161 N.J. 44, 54 (1999)). Second, "where the purpose of the new rule
'is to overcome an aspect of the criminal trial that substantially impairs its
truth-finding function' and which raises 'serious questions about the accuracy
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of guilty verdicts in past trials'" the first factor points to a complete retroactive
application. Burstein, 85 N.J. at 406-07 (quoting Williams v. United States,
401 U.S. 646, 653 (1971)). "In between these extremes is a third category of
cases, where the new rule is designed to enhance the reliability of the
factfinding process but the old rule did not 'substantially' impair the accuracy
of that process." Id. at 408.
To determine the extent to which the old rule impaired the truth-finding
process, we consider "first, the likelihood of untrustworthy evidence being
admitted under the old rule and, second, whether the defendant had alternate
ways of contesting the integrity of the evidence being introduced against"
them. Ibid. Second, we balance "the extent to which the old rule impaired the
reliability of the truth-finding process" against the "countervailing State
reliance on the old rule and the disruptive effect that retroactivity would have
on the administration of justice." Ibid.
Clearly, the first category is not implicated here. The scope of
permissible cross-examination of a cooperating co-defendant is unrelated to
police conduct. The holding in Jackson addresses the truth-finding process at
trial, given that it is intended to provide jurors with a broader range of
information on which they may make a credibility determination with respect
to a cooperating co-defendant.
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We agree with the State's argument that the rule replaced by Jackson did
not substantially impair the truth-finding process at trial. Prior to Jackson,
defendants were permitted to question cooperating co-defendants about plea
bargain negotiations, although in a more limited fashion than required by
Jackson. For example, defendant's lengthy cross-examination of D'Anna
revealed that he faced a significant prison sentence which he would likely
avoid by testifying against defendant. The jurors heard the State's original
recommendation was for a seven-year prison sentence and D'Anna's counsel
negotiated an agreement for a recommendation of probation in exchange for
D'Anna's cooperation.
In addition, defendant called Concepcion as a witness. He cast doubt on
D'Anna's credibility, testifying that D'Anna was a conspirator in the mortgage
fraud from its inception, contrary to D'Anna's testimony. Defendant, therefore,
used alternate ways of contesting the integrity of the evidence being
introduced against her through D'Anna's testimony.
We also agree that under the old rule the admission of untrustworthy
evidence was not likely. Jackson enhances the truth-finding process by
providing jurors with additional evidence on which to make credibility
determinations. It does not address a prior practice under which untrustworthy
evidence was likely to be admitted. The testimony permitted under the old
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rule would also be admissible under Jackson. The difference under the new
rule is that additional testimony introduced during cross-examination will
assist the triers of fact in determining the cooperating witness's credibility. We
agree, therefore, that the purpose of the new rule militates against complete
retroactivity.
We reach the same conclusion with respect to the State's reliance on the
old rule, which was longstanding, and the impact on the administration of
justice that would result from complete retroactivity. As the PCR court
recognized, co-defendant cooperation has long been a facet of multi-defendant
trials. It is likely that complete retroactive application would potentially
disrupt numerous convictions.
The Court faced similar circumstances in State v. Bellamy, 178 N.J. 127(2003). In that case, the Court considered whether to retroactively apply its
holding that a defendant must be informed of the possibility of civil
commitment under the New Jersey Sexually Violent Predator Act (the Act),
N.J.S.A. 30:4-27.24 to -27.38, when entering a guilty plea to certain predicate
offenses. Id. at 131. When undertaking its analysis, the Court noted that trial
courts routinely did not inform defendants of the possibility of civil
commitment before accepting their pleas, but the number of pleas entered
under such circumstances had not been established by the parties. Id. at 142.
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The Court held that "[w]hile we do not know the exact number of defendants
who pled guilty to a predicate offense without knowing the possible
consequences under the Act . . . , we recognize that full retroactivity of this
decision would have a disruptive effect on the administration of justice." Ibid.The Court continued,
[t]he lack of data regarding the number and kinds of
cases that would be affected by a rule of complete
retroactivity and the impact that complete retroactivity
would have on the administration of justice mandates
that the new rule should apply only to cases pending
direct review at the time of the rule's announcement.
[Id. at 142-43.]
The Court's reasoning is equally applicable here.
We also are not persuaded by defendant's argument that the holding in
Jackson is similar to the holdings in State v. Afanador, 151 N.J. 41, 59 (1997),
and Roberts v. Russell, 392 U.S. 293, 293 (1968), where complete retroactivity
was applied.
Afanador addressed whether the holding in State v. Alexander, 136 N.J.
563 (1994), should apply with complete retroactivity. In Alexander, the Court
held that before a "defendant could be convicted as drug kingpin under
N.J.S.A. 2C:35-3, the jury should be instructed that it must find the defendant
held an 'upper echelon' or 'high level' role as leader of a drug trafficking
network." Afanador, 151 N.J. at 46. The Court held that Alexander did not
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announce a new rule. Id. at 57. Instead, the Court concluded that Alexander
clarified ambiguities in a statute and did not bring about "a 'sudden and
generally unanticipated repudiation of a long-standing practice.'" Id. at 57-58(quoting State v. Cupe, 289 N.J. Super. 1, 12 (App. Div. 1996)). Thus, a
retroactivity analysis was not necessary. This is a critical distinction, given
that the parties and this court agree Jackson announced a new rule.
In dicta, the Court held that if Alexander were considered to have
announced a new rule, complete retroactivity would apply to its holding. Id. at
59. However, in reaching that conclusion, the Court noted "[t]here was no
definitive case law regarding the jury instruction prior to Alexander. Thus,
past reliance is not a strong argument for precluding retroactive application."
Ibid. In addition, the Court found that "[t]he third factor, the administration of
justice, does not appear sufficient to outweigh the first factor" militating in
favor of complete retroactivity. Ibid. The Court noted that of the twenty-nine
drug kingpin convictions obtained as of that time, eighteen were the result of
guilty pleas. Ibid. "Those pleas may have established unequivocal status as a
drug kingpin. Relief from such pleas would not be warranted" under
Alexander. Ibid. While we do not have evidence of the number of convictions
that would be called into question by a complete retroactive application of
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Jackson, the PCR court took notice of the common practice of co-defendant
cooperation in multi-defendant cases.
Roberts concerned the retroactivity of Bruton v. United States, 391 U.S.
123 (1968). As the Court explained in Roberts, the Bruton Court held that
admission at a joint trial of a co-defendant's extrajudicial confession
implicating the defendant violated the defendant's Sixth Amendment
confrontation rights. 392 U.S. 293-95. The Court noted that it had
"retroactively applied rules of criminal procedure fashioned to correct serious
flaws in the fact-finding process at trial." Id. at 294 (quoting Stovall v. Denno,
388 U.S. 293, 298 (1970)). The Court found the rule abrogated by Bruton was
"a constitutional error [that] present[ed] a serious risk that the issue of guilt or
innocence may not have been reliably determined." Id. at 295. We do not
view Jackson as having corrected a constitutional error of the magnitude
addressed in Bruton.
The new rule announced in Jackson is more similar to new rules
concerning a defendant's opportunity to challenge the credibility of the State's
evidence previously found not to be completely retroactive. See Feal, 194 N.J.
at 307-12 (applying pipeline retroactivity to new rule prohibiting prosecutors
from drawing the jury's attention to defendant's presence at trial and
concomitant opportunity to tailor their testimony); J.A., 398 N.J. Super. at
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522-25 (applying pipeline retroactivity to new rule permitting jury to consider
passage of time between alleged sexual assault on a child and child's reporting
of said assault); State v. R.E.B., 385 N.J. Super. 72, 84-86 (App. Div. 2006)
(applying pipeline retroactivity to new rule allowing defendant to cross -
examine victim of sexual abuse about prior false accusation).
We therefore conclude that complete retroactive application of Jackson
is not warranted. Because defendant's direct appeal was completed at the time
Jackson was issued, the PCR court correctly determined she was not entitled to
relief under Jackson and dismissed her complaint. Given that defendant would
only benefit from complete retroactive application of Jackson, we need not
decide if pipeline retroactivity applies to the holding in Jackson.
Affirmed.
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