State v. Habel, DOCKET NO. A-1473-15T4

• Decision Date: 10 April 2018
• Docket Number: DOCKET NO. A-1473-15T4
• Parties: STATE OF NEW JERSEY, Plaintiff-Respondent, v. JAMES HABEL, Defendant-Respondent.
• Court: New Jersey Superior Court — Appellate Division

STATE OF NEW JERSEY, Plaintiff-Respondent,
v.
JAMES HABEL, Defendant-Respondent.

DOCKET NO. A-1473-15T4

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION

Argued November 28, 2017
April 10, 2018

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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.

Before Judges Fasciale, Sumners and Moynihan.

On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 13-06-1087.

Edward C. Bertucio argued the cause for appellant (Hobbie, Corrigan & Bertucio, PC, attorneys; Edward C. Bertucio, of counsel and on the brief; Elyse S. Schindel, on the brief).

Mary R. Juliano, Assistant Prosecutor, argued the cause for respondent (Christopher J. Gramiccioni, Monmouth County Prosecutor, attorney; Mary R. Juliano, of counsel and on the brief).

PER CURIAM

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Defendant James Habel appeals from a December 4, 2015 judgment of conviction; a December 4, 2015 order denying his motion to be sentenced as a third-degree offender on count one, for "waiver of the minimum stipulation of parole ineligibility," and for waiver of the presumption of incarceration; a November 20, 2015 order denying his motion for a mistrial and a December 4, 2015 order denying his ensuing motion for reconsideration; a July 9, 2015 order denying his motion for judgment notwithstanding the verdict or alternatively for a new trial; and September 24, 2014 orders denying his motions to dismiss the indictment and suppress evidence. He contends:

POINT I

TRIAL COUNSEL COMMITTED A VIOLATION OF THE RULES OF PROFESSIONAL CONDUCT AND VIOLATED STATUTORY LAW AND CASE LAW [PROHIBITING] SIDE-SWITCHING FROM PRIOR GOVERNMENT EMPLOYMENT WHERE HE PRESIDED OVER THE SAME INVESTIGATION OF APPELLANT THAT HE DEFENDED HIM AGAINST AT TRIAL, WHICH REQUIRES THE REVERSAL OF APPELLANT'S CONVICTIONS AND THE REMAND FOR A NEW TRIAL.

POINT II

THE TRIAL COURT IMPROPERLY SPLIT THE SINGLE OFFICIAL MISCONDUCT COUNT IN THE INDICTMENT INTO TWO SEPARATE COUNTS, COUNT 1A AND 1B, WHEN APPELLANT WAS ONLY INDICTED FOR ONE COUNT OF OFFICIAL MISCONDUCT. THIS WAS A VIOLATION OF HIS CONSTITUTIONAL RIGHT TO INDICTMENT BY GRAND JURY AND A VIOLATION OF THE FEDERAL AND STATE RIGHTS TO PROCEDURAL DUE PROCESS, WHICH

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REQUIRES THE REVERSAL OF THE CONVICTION FOR OFFICIAL MISCONDUCT AND ALL OTHER CONVICTIONS.

POINT III

THE TRIAL COURT IMPROPERLY TOOK A PARTIAL VERDICT AS TO COUNT 1A, WHERE THE JURY WAS DEADLOCKED ON COUNT 1B, AND THEREFORE THE ILLEGAL CONVICTION OF COUNT 1, OFFICIAL MISCONDUCT, MUST BE REVERSED AS WELL AS ALL OTHER CONVICTIONS.

POINT IV

THE CONVICTION FOR OFFICIAL MISCONDUCT AND ALL OTHER CONVICTIONS RELATING TO CAR MILEAGE SHOULD BE REVERSED BECAUSE EVIDENCE WAS ADMITTED IN VIOLATION OF THE STATUTE OF LIMITATIONS AND IN VIOLATION OF N.J.R.E. 404(B) AS ILLEGAL PREDISPOSITION EVIDENCE REGARDING ALLEGED CONDUCT THAT PRE-DATED 2007, WHICH CONDUCT WAS ULTIMATELY BARRED FROM CONSIDERATION AS SUBSTANTIVE EVIDENCE OF GUILT BY THE TRIAL COURT.

(A) THE JURY SHOULD HAVE BEEN INSTRUCTED THAT ALL EVIDENCE AND TESTIMONY ELICITED AS TO ALLEGED CONDUCT PRE-2007 WAS INADMISSIBLE AND NOT TO BE CONSIDERED AS SUBSTANTIVE EVIDENCE OF GUILT AND COULD NOT BE USED BY THE JURY AS PREDISPOSITION EVIDENCE EITHER. NO SUCH INSTRUCTION WAS GIVEN.

(B) THERE SHOULD HAVE BEEN A PRETRIAL N.J.R.E. 404(B) HEARING AS TO THE ADMISSIBILITY OF EVIDENCE AND TESTIMONY AS TO THE ALLEGED CONDUCT BEFORE 2007 THAT WAS NOT A THEFT, AND THERE SHOULD HAVE BEEN A LIMITING INSTRUCTION THAT SUCH EVIDENCE WAS INADMISSIBLE AS SUBSTANTIVE EVIDENCE.

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POINT V

ALL OF APPELLANT'S CONVICTIONS SHOULD BE REVERSED BECAUSE THE TRIAL COURT ERRONEOUSLY DENIED THE PRE-TRIAL AND POST-VERDICT MOTIONS TO DISMISS THE COUNTS FOR WHICH HE WAS CONVICTED AS THE INDICTMENT DID NOT ALLEGE ANY STATUTE, RULE, REGULATION, OR MUNICIPAL CHARTER THAT WAS VIOLATED BY APPELLANT AND THE TRIAL COURT FAILED TO CHARGE AND THE STATE FAILED TO ESTABLISH ANY LEGAL DUTY THAT WAS VIOLATED BY APPELLANT'S ALLEGED CONDUCT AND THE FIRST TRIAL COURT FAILED TO CONSIDER CERTAIN EXCULPATORY EVIDENCE THAT CLEARLY ESTABLISHED THAT THERE WAS NO WRONGDOING COMMITTED BY APPELLANT IN THIS CASE.

POINT VI

APPELLANT'S CONVICTION SHOULD BE REVERSED BECAUSE:

(A) DURING TRIAL THE COURT IMPROPERLY ALLOWED THE STATE TO CONDUCT AN ADDITIONAL INVESTIGATION AS TO THE ISSUE OF CAR USAGE AND MILEAGE IN VIOLATION OF [RULE] 3:13-3 AND EVIDENCE RULES, OR

(B) DURING THE TRIAL THE COURT IMPROPERLY PREVENTED THE DEFENSE FROM PRESENTING [EXCULPATORY] EVIDENCE.

POINT VII

THERE WERE VARIOUS INSTANCES OF PROSECUTORIAL MISCONDUCT THAT OCCURRED THAT REQUIRE REVERSAL OF ALL OF APPELLANT'S CONVICTIONS.

(A) THE ASSISTANT PROSECUTOR PUT APPELLANT'S TRIAL COUNSEL ON THE STATE'S WITNESS LIST TO CREATE A CHILLING EFFECT ON TRIAL COUNSEL'S REPRESENTATION OF APPELLANT, KNOWING HE WAS FIRST ASSISTANT PROSECUTOR AND ACTING MONMOUTH COUNTY PROSECUTOR FROM 2003 TO 2005.

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(B) THE STATE FAILED TO REQUEST AN N.J.R.E. 404(B) HEARING, AS WAS ITS DUTY, REGARDING ALLEGED CONDUCT BEFORE 2007, WHICH WAS INADMISSIBLE AND BEYOND THE STATUTE OF LIMITATIONS.

(C) THE ASSISTANT PROSECUTOR READ TWO EMAILS ALLEGEDLY WRITTEN BY APPELLANT TO THE JURY DURING HER OPENING ARGUMENT WHICH WERE NOT INTRODUCED AT TRIAL AT ALL, NOR TESTIFIED TO REQUIRING A NEW TRIAL.

(D) THE ASSISTANT PROSECUTOR ENGAGED IN ILLEGAL NAME-CALLING AND MADE IMPROPER AND DEROGATORY COMMENTS DURING CROSS-EXAMINATION AND HER SUMMATION, ABOUT APPELLANT AND TRIAL COUNSEL, WHICH CONSTITUTED PROSECUTORIAL MISCONDUCT.

POINT VIII

APPELLANT RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL PER SE, DUE TO THE CLEAR CONFLICT OF INTEREST IN [COUNSEL'S] REPRESENTATION OF APPELLANT, WHICH RESULTED FROM HIS ILLEGAL SIDE-SWITCHING. SAID CONFLICT OF INTEREST INFECTED APPELLANT'S ENTIRE TRIAL, REQUIRING THE REVERSAL OF ALL OF APPELLANT'S CONVICTIONS ON DIRECT APPEAL.

POINT IX

THE CUMULATIVE ERROR IN THIS CASE REQUIRES A REVERSAL OF ALL OF APPELLANT'S CONVICTIONS.

POINT X

THE SECOND TRIAL COURT ABUSED ITS DISCRETION IN DENYING THE DEFENSE'S MOTION FOR RELAXATION OF THE STIPULATION OF PAROLE INELIGIBILITY AND FOR A DOWNGRADE OF THE OFFENSE. THE RESULTING SENTENCE WAS, THEREFORE, EXCESSIVE.

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We disagree with all of defendant's arguments and affirm.

Defendant was convicted by a jury on March 10, 2015, of second-degree official misconduct, N.J.S.A. 2C:30-2(a) (count one), and four counts of fourth-degree falsifying or tampering with records, N.J.S.A. 2C:21-4(a) (counts seven, eight, nine and thirteen).¹

The indictment stemmed from defendant's position as superintendent of schools in the Wall Township school district — which he held since 2003; defendant acted as the Board of Education's chief executive and administrative officer, and had a general supervisory role. The charges related to accepting payments for unreported vacation-day absences and falsifying or tampering with the records relating to his district-issued automobile. Defendant's attorney, Robert Honecker, Jr., previously served as First Assistant Prosecutor and thereafter Acting Prosecutor of the Monmouth County Prosecutor's Office from 2003 to 2005.

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I.

Prior to sentencing, defendant moved for a new trial contending his convictions should be automatically reversed because Honecker had a nonwaivable, "side-switching" per se conflict of interest occasioned by a meeting he attended as Acting Monmouth County Prosecutor. The meeting was part of an investigation that led to a separate, unrelated indictment against defendant that was ultimately dismissed. The motion judge summarized defendant's argument:

[A]t some point some evidence may have been offered into the trial arising out of a meeting which occurred allegedly back in March of 2005 in which there was an ongoing dispute as to whether or not the Wall Township Board of Education and its employees, including [defendant], were adequately performing a memorandum of understanding in relation to abused children, which includes incidents of bullying or sexual misconduct because the Attorney General wanted to make clear to all of the schools in the state through the Commissioner of Education that they could not deal with these types of allegations internally.

The State requested an evidentiary hearing and cross-moved for an order declaring that defendant had waived the attorney-client privilege with respect to his communications with Honecker. On November 20, 2015, the motion judge denied both motions without prejudice.

Defendant moved for "reconsideration for a sua sponte grant

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of a mistrial" based on Honecker's per se conflict of interest, arguing the time-bar applicable to a motion for a new trial did not apply to a motion for a mistrial. The judge denied defendant's motion on December 4, 2015.

Defendant now argues the attorney conflict requires a new trial in that defense counsel was First Assistant Prosecutor or Acting Prosecutor

between 2003 and 2005 when the Monmouth County Prosecutor's Office began investigating [defendant] and the Wall Township School District for alleged financial improprieties and the alleged improper use of [defendant's] district[-]issued vehicle, a Yukon Denali. Ten . . . years later, [Honecker] represented [defendant] on the same investigation, where evidence of that investigation was introduced by the State at trial.

Under our well-settled standard of review, pursuant to Rule 2:10-1, a trial court's ruling on a motion for a new trial "shall not be reversed unless it clearly appears that there was a miscarriage of justice under the law." A trial judge shall not set aside a jury verdict unless "it clearly and convincingly appears that there was a manifest denial of justice under the law." R. 3:20-1. In this context, there is no difference between "miscarriage of justice" and "manifest denial of justice under the law." See...