STATE OF NEW JERSEY VS. ORLANDO TRINIDAD (14-01-0314, ESSEX 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NOT FOR PUBLICATION WITHOUT THE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-3029-15T3
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
ORLANDO TRINIDAD,
Defendant-Appellant.
_________________________
Submitted January 18, 2018 – Decided September 17, 2018
Before Judges Simonelli, Rothstadt and Gooden
Brown.
On appeal from Superior Court of New Jersey, Law
Division, Essex County, Indictment No. 14-01-0314.
Joseph E. Krakora, Public Defender, attorney for
appellant (Richard Sparaco, Designated Counsel, on the
brief).
Robert D. Laurino, Acting Essex County Prosecutor,
attorney for respondent (Kayla E. Rowe, Special
Deputy Attorney General/Acting Assistant Prosecutor,
of counsel and on the brief).
PER CURIAM
Following a jury trial, defendant Orlando Trinidad, a former police
officer, was convicted of second-degree conspiracy to commit official
misconduct, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:30-2 (count one); second-degree
official misconduct, N.J.S.A. 2C:30-2 (count two); third-degree tampering with
public records, N.J.S.A. 2C:28-7(a)(2) (count three); fourth-degree falsifying or
tampering with records, N.J.S.A. 2C:21-4(a) (count four); fourth-degree false
swearing, N.J.S.A. 2C:28-2 (count five); and fourth-degree simple assault,
N.J.S.A. 2C:12-1(a), amended from third-degree aggravated assault, N.J.S.A.
2C:12-1(b)(7) (count six). The charges stemmed from an incident on the Garden
State Parkway on June 7, 2012.
Judge Michael L. Ravin merged count one with count two and sentenced
Trinidad on count two to a five-year term of imprisonment with five years of
parole ineligibility, concurrent to a three-year term on count three, nine-month
terms on both counts four and five, and a six-month term on count six..
On appeal, Trinidad raises the following contentions:
POINT I – DEFENDANT WAS DENIED THE RIGHT
TO A FAIR TRIAL DUE TO HIGHLY PREJUDICIAL
COMMENTS MADE BY THE ALLEGED VICTIM
THAT WERE SOLELY DESIGNED TO INFLAME
THE PASSION OF THE JURY. (Not Raised Below).
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POINT II – DEFENDANT WAS DENIED THE
RIGHT TO A FAIR TRIAL DUE [TO THE]
ADMISSION OF INTERNAL AFFAIRS
LIEUTENANT'S LAY OPINION ON THE
DEFENDANT'S GUILT. (Not Raised Below).
POINT III – THE DEFENDANT'S SENTENCE WAS
EXCESSIVE.
(A) THE COURT ERRED IN FAILING
TO SENTENCE THE DEFENDANT TO
ONE-DEGREE LOWER.
(B) IMPOSITION OF THE PAROLE
INELIGIBILITY TERM WAS
UNWARRANTED.
POINT IV – THE DEFENDANT'S MOTION FOR A
JUDGMENT OF ACQUITTAL N.O.V. BASED UPON
INSUFFICIENCY OF THE EVIDENCE SHOULD
HAVE BEEN GRANTED.
(A) THERE WAS INSUFFICIENT
EVIDENCE TO SUPPORT THE GUILTY
VERDICT ON THE CHARGE OF
CONSPIRACY.
(B) THERE WAS INSUFFICIENT
EVIDENCE TO SUPPORT THE GUILTY
VERDICT ON THE CHARGE OF
OFFICIAL MISCONDUCT.
(C) THERE WAS INSUFFICIENT
EVIDENCE TO SUPPORT THE GUILTY
VERDICTS ON COUNTS THREE, FOUR
OR FIVE.
We reject these contentions and affirm.
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The Underlying Incident
On June 7, 2012, Police Officers Sean Courter and Albert Sutterlin from
the Township of Bloomfield Police Department (BPD) responded to a home on
West Passaic Avenue on a report of a domestic violence incident between
Marcus Jeter and his girlfriend, Ms. T. Killian. In his incident report, Courter
gave the following version of what happened:
Responded to . . . West Passaic Ave. on a report of a
Domestic. Upon arrival Officer Sutterlin and I rang the
doorbell to the residence. While ringing the doorbell a
black male, later identified as Mr. Marcus Jeter, stuck
his head out the second floor window and stated, "Come
and get me". A female, later identified as Ms. [T.]
Killian, then opened the front. While speaking with
Ms. Killian, the girlfriend, she stated that her boyfriend,
Mr. Jeter, just jumped out the back window. Officer
Sutterlin and I heard an engine starting from the rear of
the residence. A vehicle . . . came up the driveway at a
high rate of speed. I stated to the driver, Mr. Jeter, to
put the vehicle in park and give me his identification.
Mr. Jeter ignored my order to put the vehicle in park
and stated, "I did not do anything wrong". I spoke to
Mr. Jeter through the front passenger side window,
which was rolled down. As Mr. Jeter was speaking, I
smelled a strong odor of an alcoholic beverage
emanating from his breath and his eyes being
bloodshot. In further observing the vehicle I observed
the rear driver tire to be flat. I asked Mr. Jeter again to
put the vehicle in park and give me his identification.
Mr. Jeter refused and drove off at a high rate of speed,
making a left onto West Passaic Ave. I ran to my
vehicle and advised Central Communications and
[Lieutenant Sean] Schwindt that I was pursuing this
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vehicle. I activated my emergency lights and sirens and
was able to view Mr. Jeter's vehicle make a right onto
Broad St. from West Passaic Ave. Upon reaching
Broad St., I observed Mr. Jeter's vehicle make a right
onto Parkway South. I was able to catch up to Mr.
Jeter's vehicle on the Parkway South. I pulled behind
Mr. Jeter's vehicle, who continued to drive on the
Parkway South. At this time, I observed the driver-side
rear tire to be sparking, due to that Mr. Jeter was driving
on the rim. After approximately 1,000 feet, Mr. Jeter's
vehicle became disabled, due to that the driver-side rear
rim was on its side. Mr. Jeter's vehicle came to rest at
mile marker 154.1 on the Parkway South. I exited my
vehicle with my handgun drawn on Mr. Jeter, who was
still in the vehicle with the engine running. I gave Mr.
Jeter multiple commands to shut off the vehicle and
show me his hands. Mr. Jeter refused and stated "Fuck
You, I did not do anything". Officer Sutterlin then
arrived on scene. At this time I proceeded to the drivers
side door and attempted to open it. The door was
locked. I again gave Mr. Jeter verbal commands to
open the door. Mr. Jeter refused and stated "Fuck You"
and then rolled up his driver side window. I advised
Central Communications that Mr. Jeter was refusing to
exit the vehicle. Officer Trinidad arrived on scene and
blocked Mr. Jeter's vehicle in from the front, due to that
Mr. Jeter refused to turn off his vehicle. I again gave
Mr. Jeter verbal commands to unlock the driver side
door and exit the vehicle. Mr. Jeter refused. I then used
my ASP, which is an expandable baton, to break Mr.
Jeter's driver side window. When the window was
broke, I gave Mr. Jeter verbal commands to open the
door. Mr. Jeter refused. While Officer Sutterlin and
Officer Trinidad stood by, I reached into the driver side
window and opened the door. While reaching into the
broken window, my left forearm was scraped by the
broken glass. I was able to open the door. I advised
Mr. Jeter to take off his seatbelt. Mr. Jeter refused. I
A-3029-15T3
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reached over Mr. Jeter and attempted to take off Mr.
Jeter's seatbelt. While attempting to take off Mr. Jeter's
seatbelt, Mr. Jeter began grabbing onto my holster in an
attempt to get my handgun. I advised Mr. Jeter multiple
times to stop resisting. Officer Trinidad, Officer
Sutterlin and I then attempted to take Mr. Jeter to the
ground, at which time Mr. Jeter struck Officer Trinidad
in the face with his fist. We were then able to take Mr.
Jeter to the ground. While on the ground Mr. Jeter put
his hands underneath his body in an attempt not to be
handcuffed. I advised Mr. Jeter multiple times to stop
resisting and give me his hands. Officer Trinidad and I
were able to handcuff Mr. Jeter. Mr. Jeter was then
placed into patrol vehicle 4.
[(Emphasis added).]
Courter also filled out a "Bloomfield Police Department DVD Discovery Form,"
which indicated that both his and Trinidad's patrol vehicles were equipped with
video cameras, the cameras were on during the incident, and the hard drives
were removed from the patrol vehicles after the incident and placed into
evidence.
In his incident report, Sutterlin gave the following version of the incident:
Responded to . . . West Passaic Avenue on a report of a
[d]omestic. Upon arrival, Mr. Jeter opened an upstairs
window and yelled: "Come and get me!" This officer
then rang the doorbell until Ms. Killian responded. Ms.
Killian stated that she just wanted Mr. Jeter to leave for
the evening and that when she had gone to the door, Mr.
Jeter jumped out the back window. Mr. Jeter was
stopped at the end of the driveway as he was trying to
leave. Officer Courter requested Mr. Jeter's license and
A-3029-15T3
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at this time, Mr. Jeter sped off, south on West Passaic
Avenue. Mr. Jeter turned right onto Broad Street into
the McDonald's [p]arking lot and then onto Garden
State Parkway South. At mile marker 154.1, Mr. Jeter
pulled over because his left rear tire had gone flat and
the rim had broken. Mr. Jeter was ordered out of his
vehicle and at this time, Mr. Jeter locked all the doors
and rolled up all windows, refusing to come out. At
this time, Lieutenant Schwindt acknowledged to use all
necessary force to effect an arrest. At this time, the
driver's window was broken. Mr. Jeter refused to take
off his seat belt and while Officer Courter was reaching
over him, Mr. Jeter attempted to gain control of Officer
Courter's firearm. Mr. Jeter was then extricated from
the vehicle and ordered to the ground. At this time, Mr.
Jeter refused to submit to arrest and necessary force was
used to effect an arrest.
[(Emphasis added).]
Criminal Charges Filed Against Jeter
On June 7, 2012, Courter signed complaint warrants against Jeter charging
him with second-degree eluding, N.J.S.A. 2C:20-2B; third-degree resisting
arrest, N.J.S.A. 2C:29-2(a)(3)(a); second-degree attempting to disarm a police
officer, N.J.S.A. 2C:12-11(a); and obstructing administration of law or other
governmental function, a disorderly persons offence, N.J.S.A. 2C:29-1(a).1
1
Courter also issued motor vehicle summonses to Jeter for driving while license
suspended, N.J.S.A. 39:3-40; reckless driving, N.J.S.A. 39:4-96; refusal to
submit to an alcohol test, N.J.S.A. 39:4-50.2; driving while intoxicated, N.J.S.A.
39:4-50; failure to comply with directions of officers, N.J.S.A. 39:4-57; driving
A-3029-15T3
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On September 19, 2012, a grand jury indicted Jeter for second-degree
eluding, N.J.S.A. 2C:29-2(b); second-degree attempting to disarm a police
officer, N.J.S.A. 2C:12-11(a); third-degree aggravated assault on a law
enforcement officer acting in the performance of his duties, N.J.S.A. 2C:12 -
1(b)(5)(a); and third-degree resisting arrest, N.J.S.A. 2C:29-2(a)(3)(a).
The Internal Affairs Investigation
Prior to his indictment, on June 12, 2012, Jeter filed a complaint against
Trinidad and Courter with the Essex County Prosecutor's Office (ECPO),
alleging they physically assaulted him. Jeter asserted that the officers turned on
their police lights indicating for him to pull over, he pulled over, and "the cops
approached [his] vehicle . . . beat him up and arrested him, never informing him
why he was pulled over." He also alleged that a police vehicle crashed into the
front of his vehicle. In response to Jeter's complaint, the ECPO contacted the
BPD's Internal Affairs Division (IAD), which began an investigation.
In an interview with Lieutenant Michael J. Cofone of the IAD, Jeter said
that he stopped his vehicle on the Garden State Parkway South after he saw the
police lights and his tire started smoking. Once he stopped, he saw police
while intoxicated 1000 feet from a school, N.J.S.A. 39:4-50.6; and creating risk
of an accident, N.J.S.A. 39:4-56.
A-3029-15T3
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officers on both sides of his vehicle pointing their guns at him saying "get the
fuck out of the car." As soon as he saw their weapons, he put his hands up and
complied with their instructions to turn off his vehicle. At that point, a police
vehicle (driven by Trinidad) came from Garden State Parkway North and
crashed into the front of his vehicle. After the officer on the left side of his
vehicle broke his window, the officers "opened his door and punched him in the
face, he was caught off guard, the [o]fficers . . . tried to take off his seatbelt and
'elbowed [him] in the face two times.'" After the officers removed his seatbelt,
"they slammed [him] to the ground . . . handcuffed [him,] . . . patted [him] down
and put [him] in the police car." During the encounter he asked to call his
lawyer. As a result of the incident, he suffered a sprained wrist and cuts and
bruises on his left arm, right arm, wrist, chest, and face.
Cofone obtained Courter's and Sutterlin's incident reports, the video
recording from only Courter's patrol vehicle, and radio and telephone
recordings. He consulted with Detective Andrew Zachares and was told the
video recording from Trinidad's patrol vehicle was not available.
Cofone instructed Trinidad, Courter, and Sutterlin to submit
administrative reports of the incident. In his administrative report, Trinidad
stated:
A-3029-15T3
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On Thursday June 07, 2012[,] at approximately 00[:]14
hours[,] I was in marked unit #4 patrolling in my zone.
Officer Sutterlin and Officer Courter received a call . .
. that there was a domestic [violence incident] in
progress at . . . West Passaic Avenue. I was originally
dispatched by [C]ommunications[,] then I was told to
disregard and resume patrol in my zone. Several
minutes later Officer Courter relayed to
Communications that [Jeter] . . . had fled the scene at a
high rate of speed. . . . At this time I advised Central
that I would be making my way to the scene. I activated
my emergency over head lights and sirens and began
making my way to the scene when I heard Officer
Courter's next transmission that [Jeter] . . . had gotten
onto Parkway South and [Courter] continued the
pursuit until [Jeter] finally pulled over at mile marker
154.1. I asked Central for authorization to go onto
Parkway North so that I could expedite my arrival to
assist Officer[s] Courter and . . . Sutterlin. Lieutenant
Schwindt gave the approval and I took Parkway North
to the motor vehicle stop. When I reached their
location[,] I carefully crossed the black top median
yielding to traffic. When I saw that no traffic was
coming[,] I drove across [with the] lights and sirens still
activated and parked my vehicle . . . bumper to bumper
with . . . [Jeter's] vehicle so that he would not attempt
to flee or use his vehicle as [a] weapon . . . . When I
exited my vehicle[,] I observed Officer[s] Courter and
. . . Sutterlin giving multiple commands . . . to [Jeter]
to "[e]xit the vehicle . . . ." I immediately began giving
verbal commands to . . . [Jeter] to "[e]xit the vehicle . .
. [as he was] under arrest[.]" [Jeter]. . . refused multiple
verbal commands from Officer Courter and myself. At
this time I verbally advised . . . [Jeter] that if he did not
exit the vehicle we were going to breach the window to
effect the arrest. [Jeter] . . . ignored my commands
again stating[,] . . . "Fuck off![] I didn't do shit man[.]"
Officer Courter then attempted to open the driver side
A-3029-15T3
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door but the door was locked. Officer Courter then
used his asp (expandable baton) and successfully
breached the window. Multiple verbal commands were
given to . . . [Jeter] to unlock the door and exit his
vehicle, [but] he refused. Officer Courter reached into
the driver side window and opened the door. Officer
Courter ordered . . . [Jeter] to take off his seat belt and
exit the vehicle. [Jeter] . . . refused to comply. Officer
Courter reached over . . . [Jeter] to take off his seat belt,
at which time I observed . . . [Jeter] grabbing Officer
Courter[']s service weapon which he had holstered on
his right hip. Officer Courter yelled[,] . . . "He's
grabbing my gun . . . [.]" Officer Courter gave . . .
[Jeter] multiple[] commands to let go of his gun and
stop resisting. At that moment I was in fear for my
partner[']s life and[] my own. Officer Sutterlin and I
proceeded to grab . . . Jeter's hands off [of] Officer
Courter's gun. Officer Courter was able to remove
[Jeter's] seatbelt . . . . [When] attempting to extradite .
. . [Jeter] from the vehicle, [Jeter] struck me in the face
with a closed fist. After struggling with [Jeter,] we
finally managed to take him to the ground. On the
ground . . . [Jeter] continued flailing his arms and then
plac[ed] his hands underneath his body. I ordered him
to . . . [s]top resisting . . . [and g]ive me [his] hands[.]"
And he refused. After struggling with . . . Jeter we
finally were able to grab his hands and place him under
arrest.
[(Emphasis added).]
Courter's administrative report mirrored his incident report, and he added:
I had to reach over Mr. Jeter[] to remove his seatbelt,
but as I was reaching over Mr. Jeter began grabbing
onto my holster attempting to remove my handgun. I
was scared from my life. I stated he is going for my
gun. Officer Trinidad and Officer Sutterlin
A-3029-15T3
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immediately came to my aid and restrained Mr. Jeter's
hands from removing my handgun. Mr. Jeter continued
to resist our efforts to arrest him. We stated multiple
times to stop resisting. Mr. Jeter continued to flail his
arms and body in an attempt not to be removed from the
vehicle.
[(Emphasis added).]
Sutterlin provided more details of the incident in his administrative report,
and added the following:
At this time, Officer Courter stated that Mr. Jeter was
attempting to take Officer Courter's weapon. At this
time, this officer and Officer Trinidad reached in to
assist Officer Courter and extricate Mr. Jeter during
which time Mr. Jeter struck Officer Trinidad in the face.
Mr. Jeter was ordered several times to stop resisting,
but Mr. Jeter continued to fight with the officers. Mr.
Jeter was brought to the ground and continued to resist
by putting his hands underneath his body.
[(Emphasis added).]
Cofone found that Jeter's conduct and behavior precipitated the event, he
lacked credibility, was uncooperative, actively resisted the officers' attempt to
arrest him, attempted to grab Courter's weapon, and punched Trinidad in the
face. Cofone exonerated the officers, concluding the incident occurred, but the
officers' actions were justified, legal, and proper. On August 1, 2012, Cofone
notified Jeter that the investigation indicate[d] that the officers followed the
appropriate department policies and procedures.
A-3029-15T3
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On April 3, 2013, the case was reopened after Michael Morris of the ECPO
notified Cofone of the existence of the video recording from Trinidad's patrol
vehicle, which showed a very different account of the incident than what
Trinidad, Courter and Sutterlin had reported. In his investigation report, Cofone
stated:
Chief Goul, Sgt. Sierchio and I reviewed the
recording; the recording provides an almost
unobstructed view of the passenger compartment of Mr.
Jeter's vehicle. Trinidad responds from the GSP north
bound side, crosses the grass median and the south
bound lanes of traffic and strikes Mr. Jeter's vehicle at
appx. 10-12 mph, Jeter immediately raises his hands;
Trinidad exits his vehicle and runs around the
passenger side of Jeter's vehicle. P.O. Courter can be
seen at the driver side of [Jeter's] vehicle striking his
window with an object, the window appears to then
explode, and Courter then clears the broken glass from
the window area. Courter then leans into the passenger
compartment and opens the driver side door. As this
occurs Jeter's hands remain up, Courter then appears to
grab Jeter's left hand/arm as Jeter's right arm is still
raised and remains [raised]. Jeter then leans toward the
passenger side and his left arm becomes free and he
raises his left arm along with his right arm; both of his
hands remain raised the entire time. Courter is in the
passenger compartment of [Jeter's] vehicle. Even when
Courter appears to grab Jeter in a bear hug both of
[Jeter's] hands remain raised; at no time can Jeter be
seen grabbing in any area of Courter[']s body as his
hands remain raised at the vehicle[']s passenger
compartment roof. At no time does either P.O. Trinidad
or P.O. Sutterlin enter the passenger compartment;
additionally Trinidad does not appear on camera after
A-3029-15T3
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he runs from his vehicle to Jeter's [vehicle] subsequent
to his arrival at the scene. While Courter was leaning
in the passenger compartment Sutterlin appears at the
passenger side window and appears to strike the
passenger side window but it does not break, he then
walks to the rear of Jeter's vehicle and is not seen again.
At no time does Jeter appear to punch Trinidad in the
face.
Chief Goul, Sgt. Sierchio and I viewed the
recording several more times and did not view any
attempt by Jeter to grab Courter in any way and at no
time can Jeter be seen punching Trinidad. At no time
do Sutterlin and Trinidad appear in the passenger
compartment of Jeter's vehicle. There is no struggle by
Trinidad or Sutterlin to remove Jeter's "hands" from
Courter's weapon. At no time during the recorded
events of this incident does a Supervisor respond to the
scene of Jeter's arrest.
[(Emphasis added).]
Cofone concluded from his review of the video that Courter lied in his two
reports by falsely reporting: Jeter grabbed his gun; Trinidad and Sutterlin came
to his aid and restrained Jeter's hands from removing the gun; Jeter flailed his
arms and body "when in reality Jeter ha[d] his hands up in a gesture of surrender
the entire time[;]" and Jeter struck Trinidad in the face with a closed fist. Cofone
noted the video showed that Jeter's hands remained up as Courter pulled him
from his vehicle, and Courter pulled him from the vehicle and threw him to the
ground in one motion.
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Cofone concluded that Trinidad lied in his administrative report about
Jeter's actions and that Jeter physically assaulted him. Cofone noted the video
showed that after Jeter was handcuffed and secured, Trinidad picked him up and
threw him onto the front passenger hood of Trinidad's patrol vehicle so hard that
Jeter's feet came off the ground. The video also showed that Trinidad punched
Jeter so hard in the head that his punch careened off Jeter and struck Courter in
the face. Cofone also concluded that Sutterlin lied in his two reports that: Jeter
tried to take Courter's gun; he and Trinidad assisted Courter; Jeter punched
Trinidad in the face; and Jeter struggled.
Following an investigation by the ECPO, all charges against Jeter were
dismissed. Specifically, the ECPO found from its review of the video recording
from Trinidad's patrol vehicle "that [Jeter's] car was not in [the] sight line [of
Courter's patrol vehicle] until shortly before [Jeter's] car was disabled and pulled
to the shoulder of the [Garden State Parkway]. Therefore it would be impossible
to impute to [Jeter] the knowledge that he was being pursued by police. For this
reason the charge of [e]luding should be dismissed."
The State's Evidence
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Trinidad, Courter and Sutterlin were criminally charged. Sutterlin pled
guilty to fourth-degree falsifying or tampering with records and agreed to testify
against Trinidad and Courter.
Sutterlin testified that Trinidad and Courter were waiting for him at police
headquarters when he returned there one or two hours after the incident. He
asked them what happened in order to provide a correct sequence of events, they
told him what happened and what to write, and he wrote what they said in his
report. Courter told Sutterlin that Jeter grabbed for his gun, but Sutterlin
admitted he did not see this or see Jeter strike Trinidad. He admitted that he
spoke to Trinidad and Courter several times about the incident before writing
his administrative report to make sure he had the correct sequence of events. He
also admitted his two reports were false, he knew they were false, he did not
write them himself, and he was aided or helped by Trinidad and Courter.
Jeter testified that he did not elude the police, resist arrest, attempt to
disarm Courter, or hit Trinidad. The video recording from Trinidad's patrol
vehicle, which was played several times to the jury, corroborated Jeter's
testimony and showed his hands were raised in a surrender gesture, and Trinidad
assaulted him.
I.
A-3029-15T3
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At trial, Jeter referenced the high profile police brutality cases involving
Amadou Diallo, Rodney King, and Sean Bell to explain why he did not exit his
vehicle when commanded to exit and kept his hands raised. Trinidad's counsel
requested, and Judge Ravin gave, a limiting instruction that the jury could only
use this testimony if it found it was relevant to Jeter's state of mind in acting the
way he acted. Courter's counsel cross-examined Jeter on this testimony.
Trinidad does not argue on appeal that the testimony was not relevant
under N.J.R.E. 401. Rather, he argues for the first time in Point I that the
testimony should have been barred under N.J.R.E. 403 because it was highly
prejudicial and served no purpose other than to inflame the passions of the jury.
Because defendant did not raise this argument below, we review this issue
for plain error. State v. Ross, 229 N.J. 389, 407 (2017) (citing R. 2:10-2). Under
this standard, we will only reverse the error if "there is a real possibility that the
error led to an unjust result, that is, 'one 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. Whitaker, 420 N.J. Super. 495, 512 (App. Div. 2008) (quoting State v.
Macon, 57 N.J. 325, 336 (1971)). We discern no error, let alone plain error, in
the admission of this testimony.
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"[T]he inquiry under . . . N.J.R.E. 403 is whether the probative value of
the evidence 'is so significantly outweighed by [its] inherently inflammatory
potential as to have a probable capacity to divert the minds of the jurors from a
reasonable and fair evaluation of the' issues." State v. Cole, 229 N.J. 430, 448
(2017) (alteration in original) (quoting State v. Thompson, 59 N.J. 396, 421
(1971)). "It is not enough for the opposing party to show that the evidence could
be prejudicial; '[d]amaging evidence usually is very prejudicial but the question
here is whether the risk of undue prejudice was too high.'" Ibid. (alteration in
original) (quoting State v. Morton, 155 N.J. 383, 453-54 (1998)). "To determine
the admissibility of evidence under N.J.R.E. 401 and 403, the trial court
conducts a fact-specific evaluation of the evidence in the setting of the
individual case." Ibid. (citations omitted).
"In light of the broad discretion afforded to trial judges, an appellate court
evaluates a trial court's evidentiary determinations with substantial deference."
Id. at 449 (citing State v. Kuropchak, 221 N.J. 368, 385 (2015)). "On appellate
review, '[c]onsiderable latitude is afforded' to the court's ruling, which is
reversed 'only if it constitutes an abuse of discretion.'" Ibid. (alteration in
original) (quoting Kuropchak, 221 N.J. at 385). "When a trial court weighs the
probative value of evidence against its prejudicial effect pursuant to N.J.R.E.
A-3029-15T3
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403, its ruling should be overturned only if it constitutes 'a clear error of
judgment.'" Ibid. (quoting State v. Koedatich, 112 N.J. 225, 313 (1988)). "As
[the] Court observed, applying the predecessor rule to N.J.R.E. 403, a trial
court's weighing of probative value against prejudicial effect "must stand unless
it can be shown that the trial court palpably abused its discretion, that is, that its
finding was so wide of the mark that a manifest denial of justice resulted.'" Ibid.(quoting State v. Carter, 91 N.J. 86, 106 (1982)).
Judge Ravin did not abuse his discretion in permitting Jeter's testimony.
The probative value of Jeter's testimony was not substantially outweighed by
any undue prejudice, as it did not distract jurors from reasonably and fairly
evaluating Trinidad's and Courter's version of events. Rather, Jeter's testimony
informed the jury's credibility assessment of the different versions of events
advanced by Jeter and the officers. The references to the other high profile cases
were used only to explain Jeter's own actions at the time of the incident, not to
analogize the present case to those prior cases. Looking at his testimony on this
issue as a whole, his references to other cases were not the focus, and were made
only in relation to his own conduct and what motivated his behavior to help the
jury determine which version of events was more likely.
A-3029-15T3
19
Moreover, Judge Ravin mitigated any prejudicial effect by issuing
limiting instructions. During Jeter's direct examination, Judge Ravin advised
jurors that any references Jeter made to other cases should only be relied upon
"insofar as . . . [they] find it is relevant to . . . [Jeter's] state of mind, why he did
what it is that he said that he did or [did not] do." The judge again noted, prior
to summations, that both parties have:
agreed, based on . . . Jeter's testimony, that, if either
side wants to talk about his testimony [during
summations] concerning Rodney King, or Mr. Diallo,
or any of those cases, that each side may comment on it
only insofar as his testimony went to his state of mind
at the time in question, should the jury find that that is
material, and all parties find that his state of mind is
material.
Jurors are presumed to have followed the court's instructions in the absence of
evidence demonstrating otherwise. State v. Martini, 187 N.J. 469, 477 (2006).
There is no such evidence here. Furthermore, defense counsel mitigated any
prejudicial effect by cross-examining Jeter regarding the differences between
those high profile cases and this case.
Thus, given the limited purpose for which it was introduced, the brie f
mention of those cases in relation to Jeter's entire testimony, Judge Ravin's two
limiting instructions, and defense counsel's cross-examination of Jeter on these
references, the probative value of Jeter's testimony was not substantially
A-3029-15T3
20
outweighed by undue prejudice and, in turn, capable of resulting in a manifest
denial of justice.
II.
At trial, Cofone testified as a lay witness as follows:
Q. And had you requested, from Detective Zachares,
the second video; in other words, the video recording
from [Trinidad's patrol vehicle].
A. When I first conducted my investigation, I
requested from him all available evidence. That would
have encompassed anything there may have been.
Some things, he was aware of, as the evidence video
tech.
Q. After the investigation, did you change your
findings or have any other findings as to the conduct of
these officers at the time?
A. Not immediately. I did a review of that second
piece of evidence[, the dash cam video from Trinidad's
patrol car] with the assistance of Sergeant Sierchio and
Chief Gould.
Q. Did you then make any findings?
A. Yes, ma'am.
Q. What were those?
A. I changed the disposition from exonerated to
sustained.
....
A-3029-15T3
21
Q Sir, after watching this second video, the video
from car number 4, did you -- did you conduct any
further investigation?
A Yes, ma'am.
Q What did you do?
A Uh, well, I informed the chief -- we saw the video
-- that it appeared that, based on the new evidence, the
actions of the officers, umm, appeared to have been
criminal, and we forwarded the case to the Essex
County Prosecutor's Office for a criminal review.
In Point II, Trinidad argues for the first time on appeal that this testimony
was inadmissible lay opinion on his guilt under N.J.R.E. 701. We disagree.
"Lay witnesses may present relevant opinion testimony in accordance
with [N.J.R.E.] 701, which permits 'testimony in the form of opinions or
inferences . . . if it . . . is rationally based' on the witness' 'perception' and 'will
assist in understanding the witness' testimony or in determining a fact in issue.'"
State v. Lazo, 209 N.J. 9, 22 (2012) (alterations in original) (quoting N.J.R.E.
701). In State v. McLean, 205 N.J. 438 (2011), the Court described the boundary
line that separates factual testimony by police officers from permissible expert
opinion testimony as follows:
On one side of that line is fact testimony, through which
an officer is permitted to set forth what he or she
perceived through one or more of the senses. Fact
testimony has always consisted of a description of what
A-3029-15T3
22
the officer did and saw, including, for example, that
defendant stood on a corner, engaged in a brief
conversation, looked around, reached into a bag,
handed another person an item, accepted paper
currency in exchange, threw the bag aside as the officer
approached, and that the officer found drugs in the bag.
Testimony of that type includes no opinion, lay or
expert, and does not convey information about what the
officer "believed," "thought" or "suspected," but
instead is an ordinary fact-based recitation by a witness
with first-hand knowledge.
[Id. at 460 (citations omitted).]
The Court explicitly rejected the argument "that there is a category of
testimony that lies between [expert and lay opinions] . . . that authorizes a police
officer, after giving a factual recitation, to testify about a belief that the
transaction he or she saw was a narcotics sale." Id. at 461. The Court reasoned
that such an approach would "transform[] testimony about an individual's
observations of a series of events . . . into an opportunity for police officers to
offer opinions on defendants' guilt." Ibid.The Court's explanation of why the testimony in McLean was
impermissible has no resonance here. Cofone's testimony was not dispositive
of whether Trinidad was guilty of the charges, and he did not testify as to the
ultimate issue of whether Trinidad committed the offenses. Unlike the police
officer in McLean, Cofone was not asked for his conclusion or observation about
A-3029-15T3
23
the nature of Trinidad's conduct, and he did not express a belief regarding his
guilt. Rather, his testimony only discussed whether Jeter's claim that the officers
assaulted him was "sustained," not whether the officers committed the offenses.
More importantly, Cofone's testimony did not lead the jury to reach a result it
would not have otherwise reached when considering the overwhelming proofs
that Trinidad assaulted Jeter.
Cofone's testimony relating what he told the Chief of Police regarding his
review of the video and its depiction of Trinidad's and Courter's behavior did
not exceed the bounds of permissible lay opinions. The testimony was rationally
based on Cofone's perception and served to inform the jury how IAD conducted
its internal investigation. The testimony consisted of what he saw on the video
and what he did during a further investigation into the officers' behavior.
Moreover, the testimony was the "product of reasoning processes" familiar to
the jury, as they were later able to view the video several times, which
highlighted the discrepancies between Trinidad's and Courter's behavior and
what they said in their police reports. United States v. Garcia, 413 F.3d 210,
215 (2d Cir. 2005). While Cofone testified that based on the video, Trinidad's
and Courter's conduct appeared criminal, his testimony was not offered to
provide an opinion on their guilt, but to explain the steps he took when
A-3029-15T3
24
conducting the investigation.
Nonetheless, even if Cofone's testimony constituted inadmissible lay
opinion, its admission was not capable of causing an unjust result. The jury was
able to see and evaluate the video numerous times during the trial. Moreover,
the prosecutor did not only rely upon Cofone's lay testimony, but relied upon
Sutterlin's testimony and played the video to demonstrate that the officers
conspired to falsify their police reports and falsely swore that Jeter attempted to
grab Courter's weapon and assaulted Trinidad.
Sufficient credible evidence was presented to prove Trinidad's guilt
beyond a reasonable doubt that was untainted by Cofone's lay opinion and did
not exacerbate any potential prejudice from its admission. Cofone's testimony
was based on his perception of the video and served to advise the jury of the
context in which he performed a further investigation. Even if Cofone's
testimony included an inadmissible opinion regarding what he suspected, it was
not capable of leading the jury to either an unjust result or one it otherwise would
not have reached, as there was other sufficient evidence showing Trinidad
assaulted Jeter without provocation and falsified his report.
III.
A-3029-15T3
25
Judge Ravin sentenced Trinidad on count two (second-degree official
misconduct) to a five-year term of imprisonment with five years of parole
ineligibility. Trinidad contends in Point III that Judge Ravin erred in failing to
sentence him one-degree lower to third-degree official misconduct and imposing
a period of parole ineligibility.
We review a judge's sentencing decision under an abuse of discretion
standard. State v. Fuentes, 217 N.J. 57, 70 (2014). As directed by the Court, we
must determine whether:
(1) the sentencing guidelines were violated; (2) the
aggravating and mitigating factors found by the
sentencing court were not based upon competent and
credible evidence in the record; or (3) "the application
of the guidelines to the facts of [the] case makes the
sentence clearly unreasonable so as to shock the
judicial conscience."
[Ibid. (alteration in original) (quoting State v. Roth, 95
N.J. 334, 364-65 (1984)).]
We discern no abuse of discretion in Trinidad's sentence.
A.
Trinidad first argues that Judge Ravin erred by not sentencing him one -
degree lower to third-degree official misconduct because the mitigating factors
substantially outweighed the aggravating factors, he acted under provocation
and stress and out of character, and he reasonably believed his life was in danger.
A-3029-15T3
26
Sentencing a first- or second-degree offender to a sentence one degree
lower is governed by N.J.S.A. 2C:44-1(f)(2), which provides:
In cases of convictions for crimes of the first or
second degree where the court is clearly convinced that
the mitigating factors substantially outweigh the
aggravating factors and where the interest of justice
demands, the court may sentence the defendant to a
term appropriate to a crime of one degree lower than
that of the crime for which he was convicted.
The statute thus establishes a two-prong test. State v. Megargel, 143 N.J. 484,
496 (1996). "The court must be 'clearly convinced that the mitigating factors
substantially outweigh the aggravating ones and that the interest of justice
demands a downgraded sentence.'" Ibid. (quoting N.J.S.A. 2C:44-1(f)(2)).
"[T]he standard governing downgrading is high." Id. at 500. First, "a
court must apply the basic [sentencing] principles that are applicable to all
sentencing decisions under the Code." Ibid. Paramount is the requirement that
the severity of the crime is "the most single important factor in the sentencing
process." Ibid. (citing State v. Hodge, 95 N.J. 369, 379 (1984)). As the Court
stated:
In evaluating the severity of the crime, the trial
court must consider the nature of and the relevant
circumstances pertaining to the offense. . . . The
surrounding circumstances of an offense may make it
very similar to a lower degree offense, thus suggesting
that a downgraded sentence may be appropriate.
A-3029-15T3
27
[Id. at 500.]
Nonetheless, "facts personal to the defendant may be considered in the
sentencing process." Id. at 501 (citation omitted). Deterrence is "one of the most
important factors in sentencing." Ibid.Courts should consider a defendant's role in the incident
to determine the need to deter him from further crimes
and the corresponding need to protect the public from
him. Was the defendant the mastermind, a loyal
follower, an accomplice whose shared intent is
problematic, or an individual who is mentally incapable
of forming the necessary criminal intent?
[Ibid.]
Second, a sentencing judge must consider the interest of justice. A
decision to downgrade "should be limited to those circumstances in which
defendant can provide 'compelling' reasons for the downgrade." Id. at 502(citation omitted). Such "reasons must be in addition to, and separate from, the
'mitigating factors which substantially outweigh the aggravating factors" as
found "under the first prong." Ibid. Because the "interest of justice" focuses on
the offense and not the offender, the "circumstances used as compelling reasons
for a downgrade should arise from within the context of the offense itself." State
v. Lake, 408 N.J. Super. 313, 326 (App. Div. 2009).
A-3029-15T3
28
For example, in Lake, we reversed the judge's decision to impose a third-
degree sentence on a defendant convicted of second-degree official misconduct.
408 N.J. Super. at 330. We noted that in justifying the downgrade, the trial
judge improperly relied upon "circumstances such as a defendant's overall
character or contributions to the community [which] should not be considered
under the interest of justice prong in the determination of whether or not to
downgrade a sentence pursuant to N.J.S.A. 2C:44-1f(2)." Id. at 328.
Finally, after identifying the sentencing factors, the sentencing judge must
describe how, in the exercise of discretion, he balanced those factors. Megargel,
143 N.J. at 501-02.
Judge Ravin found that mitigating factor N.J.S.A. 2C:44-1(b)(7), "[t]he
defendant has no history of prior delinquency or criminal activity or has led a
law-abiding life for a substantial period of time before the commission of the
present offense[,]" applied "based on [Trinidad's] lack of criminal history and
on the letters submitted on his behalf demonstrating he has led an exemplary
and law-abiding life up until the date of this offense." The judge found that
mitigating factor N.J.S.A. 2C:44-1(b)(8), "[t]he defendant's conduct was the
result of circumstances unlikely to recur[,]" applied because Trinidad was
A-3029-15T3
29
required to forfeit his position as a police officer as a result of the official
misconduct conviction.
The judge applied mitigating factor N.J.S.A. 2C:44-1(b)(9),"[t]he
character and attitude of the defendant indicate that he is unlikely to commit
another offense[,]" based upon numerous letters of support which suggested that
Trinidad was dedicated to his family, friends and community and extremely
remorseful. The judge's findings on this mitigating factor is supported by
sufficient credible evidence, consisting of twenty-eight character letters
submitted by Trinidad's family members, friends, and employers, which the
judge summarized on the record during the sentencing hearing.
Contrary to Trinidad's argument, Judge Ravin properly rejected mitigating
factors N.J.S.A. 2C:44-1(b)(1), "[t]he defendant's conduct neither caused nor
threatened serious harm[,] and N.J.S.A. 2C:44-1(b)(2), "[t]he defendant did not
contemplate that his conduct would cause or threaten serious harm[,]" because
Trinidad's conduct of punching Jeter and throwing him against his patrol vehicle
threatened serious harm.
Judge Ravin also properly rejected mitigating factors N.J.S.A. 2C:44-
1(b)(3), "[t]he defendant acted under a strong provocation[,]" and N.J.S.A.
2C:44-1(b)(5), "[t]he victim of the defendant's conduct induced or facilitated its
A-3029-15T3
30
commission." In finding Trinidad guilty on all counts, the jury evidently
credited Jeter's version of events, that there was no provocation, over Trinidad's
version.
Judge Ravin applied aggravating factor N.J.S.A. 2C:44-1(a)(9), "[t]he
need for deterring the defendant and others from violating the law[,]" finding
"imprisonment would further the goals of general deterrence for the serious
crime of official misconduct." The Legislature's imposition of an enhanced
penalty for the offense of second-degree official misconduct suggests it is a
serious crime requiring general deterrence. N.J.S.A. 2C:43-6.5. Accordingly,
the judge found three mitigating factors and only one aggravating factor,
warranting the imposition of a custodial term at the low end of the sentencing
range for a second-degree crime. See N.J.S.A. 2C:43-6(a) (stating "[i]n the case
of a crime of the second degree, for a specific term of years which shall be fixed
by the court and shall be between five years and [ten] years").
However, "[t]he factors are not interchangeable on a one-to-one basis,"
thereby, "[t]he proper weight to be given to each is a function of its gravity in
relation to the severity of the offense." State v. Roth, 95 N.J. 334, 368 (1984).
"The sentencing court does more than quantitatively compare the number of
pertinent aggravating factors with the number of applicable mitigating factors;
A-3029-15T3
31
the relevant factors are qualitatively assessed and assigned appropriate weight
in a case-specific balancing process." Fuentes, 217 N.J. at 72-73 (citations
omitted). Thus, Judge Ravin's finding of three mitigating factors and only one
aggravating factor does not necessarily constitute a finding that mitigating
factors substantially outweighed the aggravating factors; a review of the
sentencing transcript reveals that he made no such finding.
Moreover, Judge Ravin properly found Trinidad was not entitled to a
downgraded sentence because he failed to satisfy the interests of justice
standard. The judge recognized the severity of the offense and the need for
deterrence given the mandatory minimum prison term and mandatory five-year
parole disqualifier for second-degree official misconduct under N.J.S.A. 2C:43-
6.5.
The judge also compared the second-degree official misconduct
conviction to the elements of a third-degree official misconduct and properly
found there was no similarity between Trinidad's conduct and third-degree
official misconduct warranting a downgrade. A third-degree official misconduct
offense occurs when "the benefit obtained or sought to be obtained, or of which
another is deprived or sought to be deprived, is of a value of $200.00 or less[.]"
N.J.S.A. 2C:30-2. Sufficient credible evidence in the record demonstrated that
A-3029-15T3
32
the harm or benefit arising from the official misconduct was nonpecuniary. Jeter
sustained various injuries, and he was indicted for various crimes he did not
commit, including aggravated assault on a law enforcement officer, based on
Trinidad's false report of the incident. Trinidad benefited by initially receiving
an exoneration by IAD and retaining his employment with the BPD.
Judge Ravin properly found that Trinidad's role and the surrounding
circumstances did not constitute compelling reasons to downgrade the sentence.
The judge noted that Trinidad "smashed the front of Jeter's car, punched Jeter
twice when he was outside the car on the ground, and then hit him again when
he was up against the car, resulting in injuries to Jeter's arms, wrist, face[,] and
ear." The judge also found that Trinidad "filled out his own report and swore
under oath regarding the circumstances," which the jury found was untruthful
when it convicted him of false swearing.
Lastly, contrary to Trinidad's contention that he was acting under immense
stress and provocation due to which the interests of justice warrant a downgrade,
Judge Ravin found that in finding him guilty on all counts, the jury evidently
found there was no provocation, and the video recording from Trinidad's patrol
vehicle and Jeter's and Sutterlin's testimony supported these findings. Thus,
A-3029-15T3
33
sufficient credible evidence supported Judge Ravin's finding that the interests of
justice did not warrant a downgrade.
B.
Judge Ravin found that because Trinidad did not satisfy the severe
hardship standard, he must serve both a prison sentence and parole ineligibility
term. Trinidad argues that Judge Ravin erred by imposing a period of parole
ineligibility because the mitigating factors substantially outweighed the
aggravating factors, his character warranted waiver of the mandatory minimum
sentence, and he acted on knowledge he gained from the other officers. He
further argues that Judge Ravin erred by not considering Jeter's conduct and the
need for general deterrence was low because he suffered sufficient repercussions
to specifically deter him from committing an offense.
N.J.S.A. 2C:43-6.5(a) requires the imposition of a mandatory five-year
term of imprisonment without eligibility for parole for second-degree official
misconduct. The court may waive or reduce the mandatory minimum term "[i]f
the court finds by clear and convincing evidence that extraordinary
circumstances exist such that imposition of a mandatory minimum term would
be a serious injustice which overrides the need to deter such conduct in others[.]"
A-3029-15T3
34
N.J.S.A. 2C:43-6.5(c)(2). When the court waives or reduces the mandatory
minimum sentence, it "must state with specificity its reasons" for doing so. Ibid.
In considering whether to waive or reduce a mandatory term under
N.J.S.A. 2C:43-6.5(a), a court should engage in an analysis similar to the one
required by N.J.S.A. 2C:44-1(d), which allows the court to waive a mandatory
term for a first- or second-degree offender if it finds that in light of defendant's
"character and condition," imprisonment would result in a serious injustice
overriding the need of general deterrence. State v. Rice, 425 N.J. Super. 375,
386-87 (App. Div. 2012). The "serious injustice" standard contained in both
statutes requires a showing of extraordinary and unanticipated circumstances.
Id. at 386. "[Th]e reasons offered to dispel the presumption of imprisonment
must be even more compelling than those that might warrant downgrading an
offense." State v. Evers, 175 N.J. 355, 389 (2003).
In interpreting the "serious injustice" standard in N.J.S.A. 2C:44-1(d), the
Court has advised that "a trial court should determine whether there is clear and
convincing evidence that there are relevant mitigating factors present to an
extraordinary degree and, if so, whether cumulatively, they so greatly exceed
any aggravating factors that imprisonment would constitute a serious injustice
overriding the need for deterrence." Id. at 393-94. The Court warned that "it is
A-3029-15T3
35
the quality of the factor or factors and their uniqueness in the particular setting
that matters." Ibid. With respect to deterrence, the trial court should consider
the severity of the offense, along with the circumstances of the case, defendant's
role in the offense, and any presumption of imprisonment. Id. at 394-95.
We have found that to apply the "serious injustice" standard in N.J.S.A.
2C:43-6.5(c)(2), the trial court should similarly determine "whether the
'extraordinary circumstances' presented by an individual defendant outweigh the
legislative determination that the need to deter others from committing certain
crimes 'involv[ing] or touch[ing] . . . [public] office or employment' requires
imposition of the statutory mandatory minimum." Rice, 425 N.J. Super. at 389(alterations in the original) (quoting N.J.S.A. 2C:43-6.5). It will be "justified
only in 'the extraordinary or extremely unusual case where the human cost of
imprisoning a defendant [for the statutory mandatory minimum and] for the sake
of deterrence constitutes a serious injustice.'" Ibid. (alteration in the original)
(quoting Evers, 175 N.J. at 392).
Judge Ravin did not abuse his discretion in imposing the five-year prison
term and five-year period of parole ineligibility. His decision did not violate the
sentencing guidelines or shock the judicial conscience and was based on
findings of aggravating and mitigating factors that were supported by sufficient
A-3029-15T3
36
credible evidence in the record. The judge properly found that Jeter's conduct,
the consequences Trinidad faced as a result of his conviction, and Trinidad's
character did not constitute "extraordinary circumstances" sufficient to
overcome the need to deter others from committing the same offenses. Trinidad
fails to provide any extraordinary and unanticipated circumstances that would
result in a serious injustice if the court imposed a lesser sentence that would
outweigh the need to deter others.
As previously stated, Judge Ravin found mitigating factors seven, eight,
and nine, and aggravating factor nine, and made no finding that the mitigating
factors substantially outweighed the aggravating factor. While Trinidad posed
a low risk of re-offending because he is no longer a police officer, a risk that
other police officers will commit the same offense still exists. Moreover,
Trinidad played an active role in the incident, as Jeter's testimony and the video
recording from Trinidad's patrol vehicle revealed that Trinidad rammed his
patrol vehicle into the front of Jeter's vehicle, assaulted Jeter, and then later
falsified his report by stating Jeter assaulted him, attempted to grab Courter's
gun, and resisted arrest. Lastly, the Legislature's imposition of a mandatory
minimum five-year term of imprisonment for a second-degree official
misconduct conviction suggests it is a severe crime with a high need for
A-3029-15T3
37
deterrence. See N.J.S.A. 2C:43-6.5; Megargel, 143 N.J. at 502; State v. Mirakaj,
268 N.J. Super. 48, 50-51 (App. Div. 1993).
The fact that Trinidad obtained knowledge of what occurred at Jeter's
residence from other officers, that Sutterlin testified he did not pressure or direct
him to include false information in his report, and there is a low need to deter
him because he lost his job, do not amount to extraordinary circumstances
resulting in serious injustice sufficient to outweigh the need to deter others from
committing the same offense. Even if Trinidad learned of what transpired at
Jeter's residence from other officers, a jury convicted him of falsely swearing to
the events that occurred while Jeter was stopped on the Garden State Parkway
South, not to what occurred at Jeter's residence. Even if Trinidad did not direct
or pressure Sutterlin to falsify his report, he falsified his own report.
The fact that as a result of his arrest and conviction, Trinidad lost his job,
incurred substantial debt, and lost his car and apartment also do not constitute
extraordinary and unanticipated circumstances. A conviction for second-degree
official misconduct carries a presumption of imprisonment. N.J.S.A. 2C:43-6.5.
Moreover, N.J.S.A. 2C:51-2(a)(2) provides that
[a] person holding any public office, position, or
employment . . . under the government of this State or
any agency . . . thereof, who is convicted of an offense
shall forfeit such office, position or employment if . . .
A-3029-15T3
38
[h]e is convicted of an offense involving or touching
such office, position or employment[.]
As such, these are all natural, reasonable consequences of a conviction for
second-degree official misconduct, not extraordinary or unanticipated
circumstances.
Because Trinidad failed to show extraordinary or unanticipated
circumstances more compelling than those warranting a downgrade and
sufficient to overcome the need to deter others, Judge Ravin properly imposed
the mandatory minimum term of imprisonment and the five-year period of parole
ineligibility.
Accordingly, we affirm Trinidad's sentence on count two. However,
because we find the conviction on the underlying offenses should have merged
with the official misconduct conviction, we remand for resentencing to merge
counts one, three, four, and five with count two.
IV.
In Point IV, Trinidad contends Judge Ravin erred in denying his motion
for judgment of acquittal notwithstanding the verdict (n.o.v.). He argues there
was insufficient evidence to support the guilty verdicts on the underlying
charges of tampering with public records, falsifying or tampering with records,
A-3029-15T3
39
false swearing, conspiracy to commit official misconduct, and official
misconduct.
We use the same standard as the trial judge in reviewing a motion for
judgment of acquittal at the close of the State's case. State v. Bunch, 180 N.J.
534, 548-49 (2004). We must determine
whether, viewing the State's evidence in its entirety, be
that evidence direct or circumstantial, and giving the
State the benefit of all its favorable testimony as well
as all of the favorable inferences which reasonably
could be drawn therefrom, a reasonable jury could find
guilt of the charge beyond a reasonable doubt.
[State v. Reyes, 50 N.J. 454, 459 (1967).]
Under Rule 3:18-1, the court "is not concerned with the worth, nature or
extent (beyond a scintilla) of the evidence, but only with its existence, vie wed
most favorably to the State." State v. Muniz, 150 N.J. Super. 436, 440 (App.
Div. 1977). "If the evidence satisfies that standard, the motion must be denied."
State v. Spivey, 179 N.J. 229, 236 (2004).
The standard for deciding a Rule 3:18-2 motion for judgment of acquittal
n.o.v. is the same as that used to decide a motion for acquittal made at the end
of the State's case. See State v. Brooks, 366 N.J. Super. 447, 453 (App. Div.
2004). On appeal, we apply the same standard. State v. Kittrell, 145 N.J. 112,
A-3029-15T3
40
130 (1996). Applying these standards, we discern no reason to reverse the denial
of Trinidad's motion for judgment of acquittal n.o.v.
Tampering With Public Records or Information
N.J.S.A. 2C:28-7(a), provides in pertinent part:
A person commits an offense if he:
(1) Knowingly makes a false entry in, or false
alteration of, any record, document or thing belonging
to, or received or kept by, the government for
information or record, or required by law to be kept by
others for information of the government;
(2) Makes, presents, offers for filing, or uses any
record, document or thing knowing it to be false, and
with purpose that it be taken as a genuine part of
information or records referred to in paragraph (1); or
(3) Purposely and unlawfully destroys, conceals,
removes, mutilates, or otherwise impairs the verity or
availability of any such record, document or thing.
Judge Ravin held the State presented sufficient evidence to enable a
rational jury to find Trinidad and Courter guilty of this charge beyond a
reasonable doubt. The judge found the third element was met because it was
undisputed that the police reports and complaint warrants were public records
required to be kept by the BPD. As to the first and second elements, the ju dge
found it was within the jury's exclusive province to determine witness credibility
and how much weight to give to the evidence. The judge pointed to Jeter's
A-3029-15T3
41
testimony denying he eluded Courter, resisted arrest, attempted to disarm
Courter, or assaulted Trinidad. The judge found the video recording from
Courter's patrol vehicle corroborated Jeter's denial he eluded Courter, and based
on the jury's viewing of this video recording, it could find Jeter's vehicle was
not in Courter's line of vision, and therefore, Jeter was not aware he was being
pursued until Courter activated his lights and sirens and Jeter immediately pulled
over. The judge also found this video recording provided a basis for the jury to
rationally find Jeter did not assault Trinidad in the manner Trinidad reported
because neither Trinidad nor Sutterlin were seen entering the driver's
compartment of Jeter's vehicle at the point where Jeter was being removed from
the vehicle.
Judge Ravin found the video recording from Trinidad's patrol vehicle
further corroborated Jeter's denials. The judge determined the jury could have
found based on this video recording that Jeter's posture was submissive and his
hands were up during the point when Courter was attempting to remove his
seatbelt, despite the split second when one of Jeter's hands was down.
Judge Ravin also pointed to Sutterlin's testimony that: Trinidad and
Courter together helped him write his incident report; his report was false; he
did not see Jeter grab Courter's gun; he, Trinidad and Courter did not struggle
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to remove Jeter's hands from Courter's gun; he did not see Jeter strike Trinidad;
and he and Trinidad never entered the passenger compartment of Jeter's vehicle.
Judge Ravin concluded a rational jury could have found Jeter's testimony
credible and interpreted the two video recordings as corroborating his testimony.
The judge determined based on this evidence, a rational jury could find Trinidad
and Courter knowingly submitted false reports and complaint warrants regarding
Jeter's actions during the incident giving rise to the criminal charges. The judge
noted that Courter's false entries included that: Jeter eluded him, refused to show
his hands and grabbed his holster to get his handgun; Trinidad and Sutterlin
came to his aid by entering the driver's compartment of Jeter's vehicle and
restraining Jeter's hands from removing his handgun; Jeter punched Trinidad in
the face as they attempted to take Jeter to the ground; and Jeter committed the
criminal offenses for which he was charged.
Judge Ravin noted that Trinidad's false entries included that: he saw Jeter
grabbing Courter's handgun; he and Sutterlin grabbed Jeter's hands off Courter's
gun; Jeter struck him with a closed fist while attempting to extract Jeter from
his vehicle; and Jeter committed the offenses charged in the complaint warrants.
Falsifying or Tampering with Records
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N.J.S.A. 2C:21-4(a), provides in pertinent part, that "a person commits a
crime of the fourth degree if he falsifies, destroys, removes, conceals any writing
or record, or utters any writing or record knowing that it contains a false
statement or information, with purpose to deceive or injure anyone or to conceal
any wrongdoing."
For the same reasons Judge Ravin expressed for the tampering with public
records or information charge, he held that the State presented sufficient
evidence to allow a rational jury to conclude Trinidad and Courter submitted
false statements in their documents pertaining to Jeter's arrest. As for the second
element, the judge found that Jeter's and Sutterlin's testimony and the two video
recordings were sufficient to allow a rational jury to infer Trinidad and Courter
wanted to injure Jeter out of anger and deceive the BPD, or alternatively, sought
to conceal their own wrongdoings in connection with Jeter's arrest.
False Swearing
N.J.S.A. 2C:28-2(a) provides, in pertinent part, that "[a] person who
makes a false statement under oath or equivalent affirmation, or swears or
affirms the truth of such a statement previously made, when he does not believe
the statement to be true, is guilty of a crime of the fourth degree." "To establish
a defendant's guilt under N.J.S.A. 2C:28-2a, the State must prove that a
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particular statement was false and not believed by the defendant to be true."
State v. Bzura, 261 N.J. Super. 602, 610 (App. Div. 1993). To be convicted
under N.J.S.A. 2C:28-2(a), "the false swearing [must be] willful and
intentional." State v. Angelo's Motor Sales, Inc., 125 N.J. Super. 200, 206 (App.
Div. 1973) (holding that to be convicted under N.J.S.A. 2C:28-2(a), "the false
swearing [must be] willful and intentional").
Judge Ravin found the State presented sufficient evidence to enable a
rational jury to find Trinidad and Courter knowingly committed the act of false
swearing. The judge found it was undisputed that they certified under oath that
the charges against Jeter were true. The judge also found that a rational jury
could have inferred from Jeter's testimony that he did not commit the offenses,
from Sutterlin's testimony that Trinidad and Courter told him what to write in
his reports, and that Trinidad and Courter knowingly made false statements
under oath.
Official Misconduct
N.J.S.A. 2C:30-2 provides, in pertinent part:
A public servant is guilty of official misconduct when,
with purpose to obtain a benefit for himself or another
or to injure or to deprive another of a benefit:
a. He commits an act relating to his office but
constituting an unauthorized exercise of his
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official functions, knowing that such act is
unauthorized or he is committing such act in an
unauthorized manner[.]
"Benefit means a gain or advantage, or anything regarded by the
beneficiary as a gain or advantage, including a pecuniary benefit or a benefit to
any other person or entity in whose welfare he/she is interested." Model Jury
Charges (Criminal), "Official Misconduct (N.J.S.A. 2C:30-2)" (2006); see also
N.J.S.A. 2C:27-1; State v. Quezada, 402 N.J. Super. 277, 285 (App. Div. 2008).
The benefit does not have to be pecuniary, but could amount to enjoyment or
self-gratification. Quezada, 402 N.J. Super. at 285.
Judge Ravin found it was undisputed Trinidad and Courter were public
servants who were acting in their official capacity as police officers at the time
of the incident. The judge found based on his analysis regarding the tampering
with public records or information, falsifying or tampering with records and
false swearing counts, each of which constituted the predicate unauthorized
official act for official misconduct, that a rational jury could infer Trinidad and
Courter knowingly committed a violation of official duty.
Judge Ravin also found the State presented sufficient evidence that Jeter
was injured and Trinidad's and Courter's reports were inconsistent with the two
video recordings from which a rational jury could conclude Trinidad and Courter
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sought the benefit of concealing their actions during the incident from
departmental review in order to make their actions appear correct.
Conspiracy to Commit Official Misconduct
N.J.S.A. 2C:5-2 provides, in pertinent part:
A person is guilty of conspiracy with another person or
persons to commit a crime if with the purpose of
promoting or facilitating its commission he:
(1) Agrees with such other person or persons that
they or one or more of them will engage in conduct
which constitutes such crime or an attempt or
solicitation to commit such crime; or
(2) Agrees to aid such other person or persons in the
planning or commission of such crime or of an attempt
or solicitation to commit such crime.
"[T]he agreement to commit a specific crime is at the heart of a conspiracy
charge." State v. Samuels, 189 N.J. 236, 245 (2007). "It is the agreement that is
pivotal." Id. at 246.
"A conspiracy conviction does not turn on 'doing the act, nor effecting the
purpose for which the conspiracy is formed, nor in attempting to do them, nor
in inciting others to do them, but in the forming of the scheme or agreement [.]"
State v. Ball, 141 N.J. 142, 178 (1995) (alteration in original) (quoting State v.
Carbone, 10 N.J. 329, 337 (1952)). Likewise, "mere knowledge, acquiescence,
or approval of the substantive offense without an agreement to cooperate, is not
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enough to establish one as a participant in a conspiracy." State v. Abrams, 256
N.J. Super. 390, 410 (App. Div. 1992). "It is the agreement that is pivotal."
Samuels, 189 N.J. at 246.
In determining whether the scheme or agreement was formed, "[j]uries are
routinely instructed that they may draw logical inferences from the evidence
presented to them and that circumstantial evidence is of as equal weight as direct
evidence. Courts have regularly held that conspiracy may be proven through
circumstantial evidence." State v. Cagno, 211 N.J. 488, 512 (2012). However,
"[t]here must be intentional participation with the purpose of furthering the goal
of committing the crime." Cannel, New Jersey Criminal Code Annotated, cmt.
5 on N.J.S.A. 2C:5-2 (2010). Further, the essential elements of conspiracy must
be evaluated in terms of the underlying offense. Samuels, 189 N.J. at 246-47.
Judge Ravin found the evidence established that Trinidad, Courter and
Sutterlin were working together in close proximity to each other and Jeter at the
scene of the incident, and the officers got together and spoke about what
information to include in their reports. The judge noted the striking similarity
of the facts in the officers' reports and the video recordings that contradicted the
contents of those reports. The judge also noted that while Sutterlin testified that
Trinidad and Courter did not orchestrate his report, he also testified t hey
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refreshed his recollection as to the incident. The judge concluded that based on
Trinidad's and Courter's communications with Sutterlin, the similarity of their
reports, and the video evidence contradicting the reports, a rational jury co uld
infer Trinidad and Courter knowingly prepared false reports and helped Sutterlin
prepare a false report for the purpose of committing official misconduct.
We are satisfied that the overwhelming evidence in this case, viewed in
its entirety and giving the State all favorable inferences therefrom, was more
than sufficient to allow a reasonable jury to find Trinidad guilty of tampering
with public records, falsifying or tampering with records, false swearing, official
misconduct, and conspiracy to commit official misconduct beyond a reasonable.
We have considered Trinidad's arguments to the contrary in light of the record
and applicable legal principles and conclude they are without sufficient merit to
warrant discussion in a written opinion. R. 2:11-3(e)(2). We affirm the denial
of Trinidad's motion for judgment of acquittal n.o.v. substantially for the reasons
Judge Ravin expressed in his comprehensive and cogent written opinion.
Trinidad's conviction and sentence on count two are affirmed. This matter
is remanded for resentencing to merge counts one, three, four, and five with
count two.
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