STATE OF NEW JERSEY v. MICHAEL TAFFARO

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Superior Court of New Jersey, Appellate Division.

STATE OF NEW JERSEY, Plaintiff–Respondent, v. MICHAEL TAFFARO, Defendant–Appellant.

DOCKET NO. A–1911–11T1

Decided: April 14, 2014

Before Judges Reisner and Alvarez. Joseph E. Krakora, Public Defender, attorney for appellant (Alan I. Smith, Designated Counsel, on the brief). John L. Molinelli, Bergen County Prosecutor, attorney for respondent (Catherine A. Foddai, Senior Assistant Prosecutor, of counsel and on the briefs). Appellant filed pro se supplemental briefs.

After a three-day jury trial, defendant Michael Taffaro was convicted of fourth-degree contempt of a judicial order, N.J.S.A. 2C:29–9(a).   On November 4, 2011, defendant was sentenced to four years probation with conditions, including the completion of an anger management program.   Appropriate fines and penalties were imposed.   Defendant appeals, and we affirm, except that we remand for clarification of the no-contact order.

On January 27, 2004, a municipal court judge signed an order barring defendant from contact, directly or indirectly, with his sister, the complainant and victim in this matter.   Defendant and his sister, along with their brother, had been embroiled in a contentious probate dispute over their parents' estate.

On March 28, 2004, the victim learned that an offensive Craigslist posting soliciting sexual activity had been made disclosing her phone number and address.   The ensuing investigation revealed that the post originated from defendant's Internet Protocol (IP) address, and as a result, defendant was indicted on July 27, 2004.   His first conviction was reversed, and the second trial resulted in a mistrial when the jury could not agree upon a verdict.   The third trial produced the verdict now being appealed.

In his opening statement, the prosecutor in this trial said:

Ladies and gentlemen, when you initially heard the Court read the indictment to you maybe some of you picked up on it, maybe some of you didn't, but the allegations in this indictment stem back to March 28, 2004 through April 6, 2004.   And I urge you at this point in time to, and I'm sure the Court will reiterate this in its closing charge, not to speculate as to this is the year 2011 and why are we here now, why hasn't this matter been taken care of.

Suffice it to say, ladies and gentlemen, we wouldn't be here unless the Court thought it appropriate for us to try this matter before you.   So let's put that aside.   Let's not speculate about that.

During this trial, references were made to the matter having been previously tried.

The defense, as has been the case throughout all proceedings, was that the posting was made by one or both of two acquaintances, D.N. and R.P. Defendant, D.N., and R.P. had spent the evening the posting was made together at defendant's home.

D.N. testified that on that evening as the three men were waiting for programs D.N. had loaded onto defendant's computer to be installed, they ordered dinner to be delivered to defendant's apartment.   They engaged in casual conversation, and defendant returned to a frequent topic — his problems with his family, sister, and court hearings.   When defendant repeated that he wanted revenge for the wrongs he believed his sister had inflicted upon him, D.N. suggested that he post an ad on the internet.   Defendant responded that he did not want to “get caught.”

D.N. explained the steps necessary to place an ad on Craigslist and by copying and pasting, he put together an ad which, although also soliciting sexual activity and offensive in nature, was different from the actual ad defendant eventually posted.   Because the listing would not be accepted unless all numerals in the ad were converted to words, D.N. was unable to post his ad.   Instead, he and R.P. went into the kitchen to eat dinner once the food arrived, while defendant stayed in the computer room.   D.N. was thoroughly and repeatedly cross-examined on the subject, but remained adamant that when he and R.P. left the room to go into the kitchen, defendant was seated in front of his computer, and the ad on the screen was the one he, D.N., had composed and not the ad which was actually posted.

Some twenty minutes later, defendant entered the kitchen and abruptly told D.N. and R.P. they had to leave as he had things to do.   On cross-examination, D.N. admitted that a criminal conviction would make his pending admission to the California bar difficult.

Prior to trial, defense counsel renewed an earlier application seeking to introduce transcripts and audio recordings of certain conversations between defendant, D.N., and R.P., which defendant had surreptitiously recorded.   In those calls, defendant attempted to elicit from both men statements to the effect that they had posted the ad, or, in D.N.'s case, that he would take sole responsibility for the posting.

The judge who presided over the second trial ruled the conversations were inadmissible, as did the different judge presiding over the third trial.   The latter advised counsel, however, that although he could not discuss the transcripts in the opening statement, as they were inadmissible, he could cross-examine D.N.1 about the conversations so long as, if an objection was raised, the matter was addressed at side bar before he responded.   Moreover, defendant would have to “live with” D.N.'s answers.

During cross-examination, D.N. agreed that he had told defendant, after he had been charged, that he would take responsibility for posting the ad, although he never actually intended to do so.   He reiterated that the ad he worked on, which contained defendant's sister's name, number, and home address, was entirely different than the ad ultimately placed on Craigslist.   In addition, he testified that defendant showed him “expired checks” and a checkbook belonging to the victim.   At some point he also told defendant he had taken the posting down, simply to get defendant “off the phone.”   D.N. testified that it would have been impossible for him to actually remove the ad, however, because he did not have access to the e-mail address from which the posting originated.   D.N. did not deny that he was a “willing participant” in the creation of the first ad, which he considered “funny.”

During closing argument, defense counsel referred to the State's failure to call any witnesses “from the various organizations, Yahoo.”   The prosecutor objected, since such witnesses were available to both sides.   The court agreed and simply instructed counsel to move on.   The comment was made within the context of defendant's challenge to D.N.'s credibility, and his challenge to the reliability of the investigation conducted by the Ridgefield Police Department.

At defendant's sentence hearing, the victim spoke regarding years of harassment and intimidation at the hands of defendant.   This conduct included defendant writing letters about her to their family, at least one of which contained a veiled threat.   He also wrote to elected officials of the municipality where she worked.   Presumably, as a result of her statement, the court requested that the prosecutor submit a detailed no-contact order.

The order we have been provided was not signed until December 16, 2011, approximately six weeks after defendant's sentencing.   It stated, among other things, that the court would “consider it a violation of this Order if Michael Taffaro writes to third parties or relatives that Michael Taffaro may have in common with the persons named above and in so doing characterizes any of the persons named above in a derogatory or inflammatory manner.” (alteration in original).

During the sentence hearing, the court referred to various suits filed by defendant against the victim, against D.N., and against R.P., related to these charges and to other matters not clear from the record.   The court also made full-time employment or full-time education a condition of probation, despite the suggestion that defendant may have been on Social Security disability.   Insofar as contact with family, however, the judge merely said

There will be no contact, be it direct or indirect, with the victim, [ ] and her family members.   Indirect means email, telephone, correspondence, correspondence to other family members that get referred back to her.   No contact.

No contact with [D.N.], direct or indirect.

I will impose a no-contact with [R.P.] also.

Because defendant had written to the jurors from his second trial, while this trial was ongoing, the judge expressed concern about defendant contacting jurors again.   Nonetheless, the order does not restrain defendant from contact with the jury.

In his counseled brief on appeal, defendant raises the following points of error:

POINT I

PLAIN ERROR OCCURRED WHEN THE PROSECUTOR INFERRED IN HIS OPENING STATEMENT THAT A JUDICIAL IMPRIMATUR EXISTED WITH REGARD TO THE CHARGES AGAINST DEFENDANT (NOT RAISED BELOW).

POINT II

THE TRIAL COURT COMMITTED PLAIN ERROR IN SUSTAINING THE PROSECUTOR'S OBJECTION THAT WITNESSES NOT CALLED BY THE STATE COULD HAVE BEEN CALLED BY THE DEFENSE (NOT RAISED BELOW).

POINT III

DEFENDANT'S CONVICTION SHOULD BE REVERSED BECAUSE, WHEN THE STATE'S CASE RESTS ON THE TRIAL TESTIMONY OF ONE WITNESS, AND THAT WITNESS HAS MADE AN OUT–OF–COURT STATEMENT THAT IS ADMISSIBLE AS A STATEMENT AGAINST INTEREST, DEFENDANT'S RIGHT TO CONFRONTATION PERMITS HIS TRIAL COUNSEL TO READ A PORTION OF THAT STATEMENT TO THE JURY IN HIS OPENING STATEMENT AND TO REFER TO THAT STATEMENT DURING HIS CROSS–EXAMINATION OF THAT WITNESS.

POINT IV

THE ABSENCE FROM THE TRIAL COURT'S CHARGE OF ANY REFERENCE TO THE PRINCIPLES OF STATE V. KOCIOLEK CONSTITUTES PLAIN ERROR (NOT RAISED BELOW).

POINT V

THE CUMULATIVE EFFECT OF THE ERRORS THAT OCCURRED DURING DEFENDANT'S TRIAL WARRANT REVERSAL OF HIS CONVICTION (NOT RAISED BELOW).

In his pro se supplemental brief, defendant adds the following:

POINT I

IT WAS CRUEL AND ILLEGAL FOR JUDGE EUGENE H. AUSTIN TO FORCE DEFENDANT TO SERVE OUT A SECOND SENTENCE FOR ONE CRIME, ESPECIALLY A SENTENCE FOUR TIMES LONGER THAN THE ORIGINAL ONE WHICH HAD ALREADY BEEN SUCCESSFULLY SERVED BY THE DEFENDANT WHILE HIS APPEALS WERE PENDING.

POINT II

IT WAS CRUEL AND ILLEGAL FOR JUDGE EUGENE H. AUSTIN TO ADD RESTRICTIONS TO THE 8–YEAR–OLD NO–CONTACT ORDER WHICH NOW PROHIBITS DEFENDANT'S FIRST AMENDMENT RIGHT TO FREEDOM OF SPEECH BY BAR[R]ING HIM FROM WRITING TO HIS OWN FAMILY MEMBERS.

I

We employ the plain error standard of review as to defendant's points one through four.   As called for by Rule 2:10–2, we will disregard the alleged error unless it was of “such a nature as to have been clearly capable of producing an unjust result.”   See State v. Macon, 57 N.J. 325, 337 (1971).   The error must be of such magnitude that it raises “reasonable doubt as to whether [it] led the jury to a result it would otherwise might not have reached.”  Id. at 336.

We consider defendant's first, second, and fourth points on appeal to warrant only limited discussion in a written opinion.   R. 2:11–3(e)(2).   As to the first point, the prosecutor merely told the jury “not to speculate” as to why the matter was being tried so many years after the event.   The fact the case had been previously tried was mentioned during the trial, without objection.   Given the age of the case, and references to earlier trials, the remark was innocuous.

Defendant's second point, that the court sustained the prosecutor's Clawans 2 objection, made in response to defendant's comment in closing about the State's failure to call representatives from Yahoo or other internet service providers, also lacks merit.   Despite the judge sustaining the objection, trial counsel went on to argue that the charges were poorly investigated and the State's proofs weak and unreliable.   That was the real thrust of his comment regarding the State's failure to call witnesses.

As to defendant's fourth point of error, generally defendant's statements, when admitted through the testimony of other witnesses, require an instruction to the jury that such statements be “receive[d], weigh[ed] and consider[ed] ․ with caution.”  State v. Kociolek, 23 N.J. 400, 421 (1957).   The instruction acknowledges “the generally recognized risk of inaccuracy and error in communication and recollection of verbal utterances and misconstruction by the hearer.”  Ibid. The lack of a Kociolek charge, however, does not constitute plain error.  State v. Jordan, 147 N.J. 409, 426–27 (1997).   Here, where defendant's specific objection is to D.N.'s testimony that defendant wanted to exact revenge upon his sister, the failure to give the instruction was not prejudicial.   The information conveyed was corroborated by the victim.   That there was substantial hostility and ongoing conflict between defendant and the victim was not in dispute.

II

It is true, as defendant contends in his third point, that hearsay statements are admissible when “so far contrary to the declarant's pecuniary, proprietary, or social interest, or so far tended to subject declarant to civil or criminal liability ․ that a reasonable person in declarant's position would not have made the statement unless the person believed it to be true.”  N.J.R.E. 803(c)(25).  “[S]tatements by a declarant that exculpate another inferentially indicate[ ] his own involvement and are considered sufficiently against declarant's penal interests to be admissible.”  State v. Norman, 151 N.J. 5, 31 (1997) (internal citations and quotations omitted).   Thus, defendant argues, it was error for the court to bar him from reading the transcript of the taped statement to the jury, and to bar him from explicitly referring to it during D.N.'s cross-examination.

In further support of his position, defendant draws our attention to State v. White, in which suppression of the use of inculpatory statements by a third party, which would have exculpated the accused, was found to be prejudicial error.  158 N.J. 230, 248 (1999).   In this case, however, although D.N.'s tape-recorded statements were not per se admitted, the trial court did allow defense counsel to cross-examine the witness thoroughly on the statements.   For example, during one of the taped conversations, D.N. assured defendant that he had removed the posting from Craigslist.   On the stand, he admitted saying that to defendant even though it was an impossibility.

Certainly, defendant's recorded self-serving statements are not admissible under any exception to the hearsay rule.   Thus the benefit defendant would have gained from admission of the recorded statements, he gained through D.N.'s testimony.   During cross-examination, including D.N.'s response regarding the impact a criminal conviction would have on admission to the California bar, defendant developed the defense that D.N. was incredible because he wanted to avoid damaging his likelihood of becoming an attorney, or of getting into trouble himself.   That the jury rejected the theory, and convicted defendant, was not the result of the court's exclusion of the evidence in the form of the transcripts, as the substance was presented to the jury.

The standard of review applicable to rulings on the admission of evidence is abuse of discretion.  Benevenga v. Digregorio, 325 N.J.Super. 27, 32 (App.Div.1999), certif. denied, 163 N.J. 79 (2000).   We see nothing here that establishes such abuse.   To the contrary, the relevant portions were presented.

III

In his pro se brief, defendant contends first that the court erred by resentencing him to four years on probation, as opposed to the one year he served while his first appeal was pending.   It is neither illegal nor unconstitutional for a defendant to be sentenced, after retrial, to a harsher sentence than the one originally imposed.  State v. Biegenwald, 110 N.J. 521, 532 (1988) (discussing North Carolina v. Pearce, 395 U.S. 711, 719, 89 S.Ct. 2072, 2077, 23 L. Ed.2d 656, 666 (1969)).  “The fundamental principle, the [Pearce ] Court wrote, rests ‘ultimately upon the premise that the original conviction has, at the defendant's behest, been wholly nullified and the slate wiped clean.’ ”  Id. at 532–33 (quoting Pearce, supra, 395 U.S. at 721, 89 S.Ct. at 2078, 23 L. Ed.2d at 667).

Where the harsher sentence is the result of vindictiveness by the court against a defendant, then a more severe sentence is prohibited.   The presumption of vindictiveness arises, however, only when there is no affirmative explanation for the harsher sentence after a new trial.  Id. at 533.   Such vindictiveness is refuted where the sentencing judge explains the reasons.

We state the obvious, that two different judges sentenced defendant to the two different terms of probation amply rebutting any presumption of vindictiveness.   See Texas v. McCullough, 475 U.S. 134, 139, 106 S.Ct. 976, 979, 89 L. Ed.2d 104, 111 (1986).

Furthermore, the victim at this sentencing described harassment occurring even after the first trial.   At this sentencing, the prosecutor informed the court that during the trial, defendant had sent letters regarding the charges to the police chiefs in Bergen County in addition to his mailings to members of an earlier jury panel.   The sentencing judge, in our view, therefore, had ample reasons for imposing a harsher sentence of four years, as opposed to one year, of probation.

As to defendant's second point of error, a challenge to the constitutionality of the seeming bar to his contact with family members, we are uncertain as to the court's intent as expressed in the order.   The strikeout of the relevant language modifying the prohibition was not initialed.   We therefore remand for the very limited purpose of clarifying that portion of the order.

IV

It is true, as defendant contends in the final point of his counseled brief, that cumulative errors can warrant reversal, even when any single error is not fatal.   See State v. Jenewicz, 193 N.J. 440, 473 (2008).   But since we do not agree that any of the points raised have merit, we do not agree that any error was committed, much less reversible error.   In the absence of any error in the process resulting in his convictions, the cumulative effect of the objected-to conduct does not warrant reversal either.

Affirmed, except that we remand to clarify the court's intent in prohibiting defendant from contact with members of his family other than the victim, her spouse, or her children.   We do not retain jurisdiction.

FOOTNOTES

1.  FN1. R.P. did not testify in this trial.

2.  FN2. State v. Clawans, 38 N.J. 162, 170 (1962).

PER CURIAM

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