State v. Schubert

• Decision Date: 17 July 1989
• Citation: 561 A.2d 1186,235 N.J.Super. 212
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. David Paul SCHUBERT, Defendant-Appellant.
• Court: New Jersey Superior Court — Appellate Division

Page 212

235 N.J.Super. 212

561 A.2d 1186

STATE of New Jersey, Plaintiff-Respondent, v. David Paul SCHUBERT, Defendant-Appellant.

Superior Court of New Jersey Appellate Division.

Submitted June 12, 1989.

Decided July 17, 1989.

Alfred A. Slocum, Public Defender, for defendant-appellant (William E. Graves, designated counsel, South Orange, on the brief).

John G. Holl, Acting Bergen County Prosecutor, for plaintiff-respondent (Ulrike M. Bergin, Acting Asst. Prosecutor, of counsel and on the brief).

Before Judges DEIGHAN and BAIME.

The opinion of the court was delivered by

BAIME, J.A.D.

This appeal presents novel questions concerning the parameters of the attorney-client privilege. At issue is whether an attorney may disclose information received from his client to law enforcement authorities where he reasonably believes such disclosure will serve his client's interests.

Following a jury trial, defendant David Paul Schubert was found guilty of aggravated arson ( N.J.S.A. 2C:17-1a) and was sentenced to a custodial term of seven years. In addition, defendant was assessed a penalty of $30 payable to the Violent Crimes Compensation Board.

On appeal, defendant asserts that (1) his attorney-client privilege was violated resulting in the discovery of incriminating evidence which was presented by the State at trial, (2) the court committed plain error by admitting evidence of other crimes, (3) the police unlawfully searched the trunk of his automobile and (4) he was denied the effective assistance of counsel. In a pro se supplemental brief filed without leave of court on the date this appeal was submitted to us, defendant raises the following additional arguments: (1) he was denied the right of confrontation, (2) the evidence was insufficient to establish his guilt, (3) the prosecutor's prejudicial comments denied him a fair trial and (4) his attorney failed to present witnesses whose testimony would have tended to exculpate him. We are entirely satisfied from our thorough review of the record that defendant was fairly convicted. We affirm.

I.

The salient facts can be summarized briefly. In September 1984, Robert and Rita Victor purchased a two-family house at 1225 Inwood Terrace in Fort Lee. At the time title was conveyed to the Victors, defendant and his wife were tenants occupying the second-floor apartment. Since the lease the Schuberts had with the prior landlord was about to expire, the Victors offered them a new term but at a substantially higher rent. Apparently, this development enraged defendant who some three weeks later assaulted Mr. Victor in the latter's apartment. During the course of this altercation, defendant allegedly threatened to kill the Victors. Although the police were summoned, defendant left the scene prior to their arrival. The Victors did not consider the threats as serious and they took no further action.

Several days later, the Victors gave defendant a notice requesting permission to inspect his apartment so that it could be rented to other tenants. Defendant refused to accept the notice and threatened to kill any prospective tenant who came upon the premises. Again, the Victors ignored defendant's threats.

Shortly after this second incident, Mr. Victor discovered that his basement was totally flooded. When questioned about the damage, defendant exclaimed that he had forced "a new plastic sheet down the toilet." Mr. Victor thereafter called a plumber who found a plastic sheet "the size of a picnic tablecloth" in the pipe. The plumber also discovered a blockage further down which had been caused by deposits of kitty litter. Immediately after this incident, the Victors discovered that the air had been let out of all four of their automobile tires.

In August, the Victors commenced a summary dispossess action against the Schuberts. This litigation culminated in a settlement in which the Schuberts were given time to move from the premises in return for their promise to pay rent in the interim. The agreement also provided that defendant and his wife were to give 15 days notice before moving.

Despite these requirements, the Schuberts left the premises in September without advising the Victors of their intention to move and without paying the agreed upon rent. When the Victors attempted to follow the moving van in order to obtain the rent owed to them, defendant's wife forced them off the road. She then scratched the Victor's car with her keys and threatened that they would "never get new tenants" to occupy the apartment.

On July 12, 1986, the Victors' home was seriously damaged by fire. Their neighbors reported the fire shortly after 9:00 p.m. immediately following what appeared to them to be a massive explosion. Arson Investigator James Walker of the Hackensack Fire Department responded to the scene and noted that the fire had begun in the front of the house and that a great deal of carbon had run from the top steps to the roof area. The presence of this amount of carbon indicated to the witness that an "accelerant" had been used. Investigator Walker also noticed an odor of gasoline in the area which emanated from a melted plastic container standing at the top of the stairs. The container was later tested positive for the presence of gasoline. The investigator theorized that gasoline had been placed in the container or thrown onto the Victors' house and had then been ignited, causing the explosion and fire.

Investigator John D'Angelo of the Bergen County Prosecutor's Office Arson Squad also responded to the scene of the fire. He too noticed the melted plastic container on the steps of the house. In addition, the investigator observed a milk carton in the bushes near the front entrance. In the course of interviewing the Victors, he was told that defendant was the only person they could think of who might have a motive to start the fire.

This information was relayed to members of the Leonia Police Department. At approximately 11:00 p.m., defendant's automobile, a blue Cadillac, was placed under surveillance by Corporal Carmey Cross. After following the automobile on a circuitous route, the officer observed defendant park and turn off the headlights. Cross approached the car on foot and asked why defendant had stopped. Defendant responded that he knew he was being followed. Smelling the odor of alcohol on defendant's breath, the officer asked Schubert to exit from the automobile. As defendant opened the door, Cross noticed a strong odor of gasoline and an open can of beer on the console. Investigator Angelo and other officers then appeared. At their request, defendant gave the police the keys to the trunk of the vehicle. When the trunk was opened, the officers observed a small "fold-up" infant's bicycle. Defendant was arrested for driving while intoxicated and other traffic violations.

On the next day, defendant telephoned Albert Socolov, a New York attorney, and advised him that the police wished to question him about the fire at the Victors' house. Defendant told Socolov that he had been home on the night of the fire and had left his apartment only briefly to purchase milk and other groceries. Shortly after this conversation, Investigator D'Angelo called Socolov and requested permission to question his client. Socolov testified that D'Angelo told him Schubert was not a "suspect" and was merely one of a number of individuals sought for questioning. In D'Angelo's detailed report, however, the investigator related that he had told Socolov he "was not accusing" defendant of committing the arson. In any event, Socolov responded that defendant was extremely upset at being a "suspect" in the crime and had told him he was home on the night in question and had gone out only to purchase milk. Socolov refused to permit D'Angelo to question Schubert.

However, remembering the presence of the milk carton at the scene of the fire, D'Angelo immediately contacted Mr. Victor who retrieved it. Following this, the police conducted a canvass of Leonia and Fort Lee, attempting to find who might have purchased a quart of milk and a container of gasoline on the night of the fire. Their efforts led them to discover that at approximately 8:00 p.m. on the evening of July 12, 1986, defendant had purchased a quart of Farmland milk at the Garden State Deli in Fort Lee. The owner of the store, Maria Conforti, told the police defendant also had asked for an empty container. Finding none, defendant drove away in a blue Cadillac with the trunk open and a bicycle inside. Further investigation revealed that defendant had driven to a nearby Gulf Station where he had asked for benzene and, being unsuccessful, had then proceeded to a Shell station across the street, where he unsuccessfully attempted to purchase "octane booster."

Investigators also discovered that on the evening in question, defendant had purchased gasoline at the Triangle Exxon Station in Fort Lee. Defendant asked one of the employees to fill a container he had brought with him. Although the attendant was initially reluctant to fill the plastic container because there was no cap, defendant persisted. After having the container filled, defendant "stuffed a rag" into the top, placed it on the back seat of the automobile and drove away.

Defendant elected to testify. In the course of his testimony, defendant admitted that he had purchased milk at the Garden State Deli and had asked for an empty container, which he wanted to use to clean his windshield. He also conceded that he had attempted to purchase "octane booster" on the same night. Defendant claimed, however, that he was having automobile trouble at the time and intended to use the "octane booster" on his Cadillac.

Based on the foregoing evidence, defendant was found guilty of aggravated arson. This appeal followed.

II.

We first address defendant's argument that his attorney-client privilege was violated when his lawyer told Investigator D'Angelo he was home on the night of the fire...