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N.J.S.A. 2C:33-3(a); and fourth-degree criminal mischief, N.J.S.A. 2C:17-3(a)(1). On the first charge, he was sentenced
to three years probation, with a specific condition that he serve 364 days in the county jail. A concurrent two-year
probationary sentence was imposed on the second charge. "> Original Wordprocessor Version
(NOTE: The status of this decision is Unpublished.) Original Wordprocessor Version
This case can also be found at *CITE_PENDING*.
(NOTE: The status of this decision is .)
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0760-07T40760-07T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
IVAN KUHN,
Defendant-Appellant.
Submitted February 11, 2009 - Decided
Before Judges Parrillo, Lihotz and Messano.
On appeal from the Superior Court of New Jersey, Law Division, Morris County,
Indictment No. 03-08-0858.
Yvonne Smith Segars, Public Defender, attorney for appellant (William Welaj,
Designated Counsel, on the brief).
Robert A. Bianchi, Morris County Prosecutor, attorney for respondent (Erin Smith
Wisloff, Assistant Prosecutor, on the brief).
PER CURIAM
Defendant Ivan Kuhn appeals from the judgment of conviction and sentence imposed following a jury trial at which
he was found guilty of third-degree creating a false public alarm, 293 U.S. Highway 206, Flanders. The computer
scan of calls made from that payphone on June 10, 2003, revealed a five-second call to 908-879-5836, the main
phone number of the Chester ShopRite, made at 1:05pm.
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In addition to reiterating the testimony he gave at the Rule 104 hearing, Mastro told the jury that he responded to
the Chester store on June 10, 2003. DeMaria gave him a paper with the phone number retrieved through the *69
feature. Mastro obtained the location of the origin of the call via an immediate trace request made by the police
dispatcher. He arrived at the A&P and confirmed the phone number was for one of the payphones in the front
vestibule of the store. Mastro reviewed the A&P security surveillance tape and recognized defendant as a man seen
walking into the vestibule at approximately 1:05 p.m. and exiting shortly thereafter. Mastro knew defendant prior to
June 10, since "[he] and his family were former residents of [Chester]," and because "[t]here was an unrelated
investigation." After leaving the A&P, Mastro went to defendant's residence in Flanders, approximately one-half mile
from the store.
Chief Neil Logan of the Chester police department was directly involved in the investigation of the bomb threat,
and his testimony essentially corroborated Mastro's. Logan knew defendant prior to June 10, but upon objection
from defense counsel, the trial judge prohibited any further testimony regarding the subject. Logan interviewed
defendant at Chester police headquarters at approximately 9:10 p.m. Defendant admitted that he used the
payphone located in the vestibule of the A&P to call an auto parts supplier because it was too noisy in his home to
make phone calls. He told Logan that he did not have any problems with ShopRite, but he disliked Losavio and
Horner because they were responsible for his termination.
Victoria Tauriello was an assistant store manager at the Bernardsville store. She claimed that defendant always
believed Losavio was not scheduling enough hours for him, and he thought the manager was picking on him. She
explained that defendant was terminated because he was yelling at Losavio in front of the deli, a violation of the
store's "no tolerance policy." Tauriello identified a surveillance videotape that showed defendant throwing eggs at
the store on March 1, 2003. The balance of the State's witnesses testified as to their investigation of the crime scene
at the A&P, and the chain of custody of various items subsequently moved into evidence. Defendant did not testify
and called his mother as the sole defense witness. Dorothy Kuhn testified that although there was a phone in the
family's Flanders home, it did not have long-distance service and her other son frequently played loud music in the
house. Thus, it was not unusual for defendant to go to a payphone to make a call.
After summations and jury instructions, defendant was found guilty of both counts of the indictment.
II.
In Points I, III, and IV, defendant argues that his motion for a new trial should have been granted because: 1) the
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judge erroneously admitted N.J.R.E. 404(b) evidence, and the prosecutor exceeded the bounds of the judge's ruling,
eliciting other prejudicial testimony and not "sanitizing" some of the evidence as the judge ordered; 2) the
prosecutor elicited from several witnesses their personal knowledge of defendant, thereby implying defendant had
a prior criminal record; and 3) he demonstrated the ineffective assistance of his trial counsel.
A "judge . . . may grant the defendant a new trial if required in the interest of justice." R. 3:20-1. A motion for a new
trial is addressed to the trial judge's sound discretion and his decision will not be lightly disturbed upon our review.
State v. Artis, 36 N.J. 538, 541 (1962); State v. Henries, 306 N.J. Super. 512, 529-30 (App. Div. 1997). None of
defendant's arguments demonstrate the trial judge mistakenly exercised his discretion in denying his motion for a
new trial.
Following the Rule 104 hearing, the judge ruled upon the admissibility of the evidence from the five witnesses. He
concluded that "[w]hile [some] of the evidence may cast negative aspersions on the defendant, it is not evidence of
a prior bad act or wrong . . . [and] is admissible because it is relevant to show why defendant targeted the Chester
ShopRite[.]" The judge included in this part of his analysis, the testimony regarding defendant's averred dislike of
Losavio, any confrontation between the two, defendant's termination from the Bernardsville store, and the letter
defendant wrote to Horner.
The judge characterized some of the other evidence as prior bad acts or wrongs committed by defendant that were
relevant and admissible under N.J.R.E. 404(b) because they demonstrated defendant's motive in phoning in the
bomb threat on June 10. This category included defendant's complaint regarding Losavio's sexual harassment of his
co-workers, his threats to kill Losavio, and defendant's admission in Bernardsville municipal court to breaking the
store window. Citing State v. Cofield, 127 N.J. 328 (1992), the judge found by clear and convincing evidence that all
of the acts were similar in kind to the offense charged, reasonably close in time, and presented a nexus between
defendant's September 2002 discharge from ShopRite and the June 2003 bomb threat.
Defendant now argues his motion for a new trial should have been granted because the judge erred in not finding
that his termination was a prior bad act since it reflected on him in a negative light and was unduly prejudicial. He
also argues that the evidence was not properly sanitized, was cumulative, and gratuitous. Finally, he contends the
probative value of the evidence was outweighed by its prejudicial effect. N.J.R.E. 403.
Our scope of review of a trial judge's determination on the admissibility of other bad conduct evidence is normally
narrow, deferential, and limited to whether the judge abused his discretion. State v. Marrero, 148 N.J. 469, 483-84
(1997). However, if the trial court admits evidence of other bad acts without applying the four-step Cofield analysis,
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no deference is owed to that decision and our standard of review becomes de novo. State v. Darby, 174 N.J. 509,
518 (2002).
"[E]vidence of other crimes, wrongs, or acts . . . may be admitted for other purposes, such as proof of motive,
opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident when such matters are
relevant to a material issue in dispute." N.J.R.E. 404(b) (emphasis added). In order to be admissible, the evidence (1)
"must be admissible as relevant to a material issue;" (2) "must be similar in kind and reasonably close in time to the
offense charged;" (3)"must be clear and convincing; and" (4) "[t]he probative value of the evidence must not be
outweighed by its apparent prejudice." Cofield, supra, 127 N.J. at 338.
Here, the evidence the judge characterized as 404(b) evidence, as well as the other evidence he concluded was not
evidence of bad acts, was all relevant to demonstrate defendant's motive in creating a false bomb threat at the
Chester ShopRite. That motive was, succinctly stated, his desire to retaliate against Losavio and ShopRite in general.
The evidence also demonstrated an almost unbroken temporal chain of events, all involving vandalism against
Shop-Rite or Losavio personally, culminating with the false bomb threat. These acts, contrary to the judge's
conclusion, were not necessarily similar in kind to the bomb threat; but, as the Supreme Court has recently noted,
"[t]he requirement set forth as prong two of Cofield . . . need not receive universal application . . .                    ." State v. Williams,
190 N.J. 114, 131 (2007). The evidence was clear and convincing, supported by corroborating testimony from
multiple witnesses and the surveillance tape. And, its probative value entirely outweighed its potential prejudice. In
short, there was no error in admitting any of it.
Defendant's contentions that the evidence was cumulative, or that the judge failed to properly sanitize it, or that
the prosecutor elicited some testimony beyond that permitted by the judge are all of insufficient merit to warrant
any extensive discussion. R. 2:11-3(e)(2). We are convinced that to the extent any of these complaints demonstrate
actual error, they were harmless and in no way affected the outcome of the case, R. 2:10-2, particularly in light of the
judge's repeated limiting instructions to the jury which we discuss in more detail below.
Defendant also argues that by eliciting "testimony from three separate police officers that they knew defendant
from the past[,]" the prosecutor committed misconduct that requires reversal. We disagree.
Mastro testified that he knew defendant because he and his family once lived in Chester, and from an unrelated
prior investigation. Nolan, and a third officer, Mark Martini, simply said they knew him. Although defense counsel
did not object to Mastro's statement, he made timely objections to questions posed to the other two witnesses, and
the judge limited their testimony.
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In State v. Ramos, 217 N.J. Super. 530, 537-38 (App. Div.), certif. denied, 108 N.J. 677 (1987), we held similar
testimony-- that the officer knew the defendant--did not imply defendant had a prior criminal record and was not
error. Similarly, in State v. Love, 245 N.J. Super. 195, 197-98 (App. Div.), certif. denied, 126 N.J. 321 (1991), we held
that testimony from an officer that he knew defendant from interviewing him in a previous homicide investigation
did not "support[] an inference by the jury that defendant had been involved in prior criminal activity[.]" We find no
basis to reverse defendant's conviction on this ground.
We find defendant's claim made in Point IV--that his motion for a new trial based upon trial counsel's ineffectiveness
should have been granted--is more appropriately addressed in the context of post-conviction relief. R. 3:22-1. "[A]
defendant's claim of ineffective assistance of trial . . . counsel is more likely to require an evidentiary hearing
because the facts often lie outside the trial record and because the attorney's testimony may be required." State v.
Preciose, 129 N.J. 451, 462 (1992). As such, they are particularly suitable for post-conviction relief, not direct appeal.
We therefore leave defendant to pursue such a claim in that context if he so chooses.
III.
In Point II, defendant argues that the judge should have granted his motion for a mistrial, or at least voir dired the
jury, after the courthouse fire alarm sounded causing the building to be evacuated in the middle of the trial. When
this occurred, neither defendant nor the jurors were actually in the courtroom because the proceedings had not
commenced. The judge did not know what caused the alarm to sound.
"The standard for granting a mistrial is the same as that for granting a new trial motion, namely whether or not the
error is such that manifest injustice would result from continuance of the trial and submission of the case to the
jury." Pressler, N.J. Court Rules, comment 5.1 on R. 3:20-1 (2009); State v. Hightower, 146 N.J. 239, 266 (1996). We
review the decision on the motion, as well as whether a cautionary instruction was necessary, under an abuse of
discretion standard. Ibid. In either case, the decision "is one that is peculiarly within the competence of the trial
judge, who has the feel of the case and is best equipped to gauge the effect of a prejudicial comment on the jury in
the overall setting." State v. Winter, 96 N.J 640, 647 (1984).
Here, the judge acknowledged that the case related to a bomb threat that resulted in an evacuation of the
ShopRite. But, the judge did not believe the fire alarm had any impact on the trial other than to interrupt it.
Regarding defendant's request that he voir dire the jury, the judge concluded that making such an inquiry would
potentially prejudice defendant by highlighting the coincidence. Absent any other proof in the record to support
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the proposition that the jury was somehow influenced by these events, we will not second-guess the judge's
exercise of his broad discretion.
IV.
In Point V, defendant raises for the first time the adequacy of the judge's limiting instruction as to the 404(b)
evidence. Prior to any witness taking the stand, the judge explained the nature of 404(b) evidence and its general
inadmissibility, then stated,
You may only consider this . . . as relevant to defendant's motive for allegedly calling in
the bomb threat to the Chester ShopRite and only as relevant to determine whether or
not he intended to cause damage to the Chester ShopRite property.
Midway through the trial, the judge gave the jury another limiting instruction regarding 404(b) testimony.
The State has introduced evidence that, if believed, shows that the defendant filed a
complaint that was not pursued . . . alleging that [Losavio] sexually harassed two female
employees and . . . [defendant] was fired from the Bernardsville ShopRite after making
threats to two employees.
The State also introduced evidence that after defendant was fired and told that he was
not allowed on [the] property, he . . . threw eggs at the [store] and . . . broke the door
window . . . and that he threw eggs at [Losavio's] car which was parked at the [other]
ShopRite.
Normally, such evidence is not permitted under our Rules of Evidence. This is because
our Rules specifically exclude evidence that a defendant has committed uncharged
crimes, wrongs or acts when that evidence is used only to show that the defendant has
a disposition or tendency to do wrong[.]
[This] evidence, should you choose to believe it, has been introduced only for a specific
narrow purpose. You may only consider this evidence as relevant to defendant's motive
for allegedly calling the bomb threat . . . and only as relevant to determining whether or
not he intended to cause damage to Chester ShopRite property.
He also told the jury that it "may not - and I emphasize 'may not' - use this evidence to decide that the defendant has
a tendency to commit crimes or that he is a bad person." The judge repeated these instructions after the State
rested, and in his final instructions to the jury.
Since no objection was ever made to any of these charges, we must consider whether they were erroneous and if
the error was "clearly capable of bringing about an unjust result." R. 2:10-2. "In the context of a jury charge, plain
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error requires demonstration of a '[l]egal impropriety . . . prejudicially affecting the substantial rights of the
defendant sufficiently grievous to justify notice by the reviewing court and to convince the court that of itself the
error possessed a clear capacity to bring about an unjust result.'" State v. Burns, 192 N.J. 312, 341 (2007) (quoting
State v. Jordan, 147 N.J. 409, 422 (1997)). The allegation of error must be assessed in light of "the totality of the
entire charge, not in isolation." State v. Chapland, 187 N.J. 275, 289 (2006). While an erroneous jury charge may be a
"'poor candidate[] for rehabilitation' under the plain error theory," Jordan, supra, 147 N.J. at 422-23 (quoting State v.
Simon, 79 N.J. 191, 206 (1979)), we nonetheless consider the affect of any error in light "of the overall strength of the
State's case." Chapland, supra, 187 N.J. at 289. Moreover, the failure to "interpose a timely objection constitutes
strong evidence that the error belatedly raised [] was actually of no moment." State v. White, 326 N.J. Super. 304,
315 (App. Div. 1999), certif. denied, 163 N.J. 397 (2000).
Defendant essentially argues the language of the charge used did not repeat the model criminal jury charge
verbatim. However, defendant is not entitled to the verbatim use of the model charges; rather, he is "entitled to an
adequate instruction on the law[,]" which he received. State v. Pigueiras, 344 N.J. Super. 297, 317 (App. Div. 2001),
certif. denied, 171 N.J. 337 (2002) (citation omitted). There was no error, much less plain error.
V.
We consider the issues defendant raises in Point VI to be of insufficient merit to warrant discussion in a written
opinion. R. 2:11-3(e)(2). We add only the following brief comments.
Our review of the trial judge's sentencing decision is quite limited. State v. Gardner, 113 N.J. 510, 516 (1989). We will
not substitute our judgment for his. State v. O'Donnell, 117 N.J. 210, 215 (1989); State v. Roth, 95 N.J. 334, 365
(1984). Modification is only necessary if the judge mistakenly exercised his broad discretion and imposed a sentence
that shocks the judicial conscience. Roth, 95 N.J. 334, 363-64 (1984). Nothing about the sentence imposed upon
defendant shocks our conscience.
Affirmed.
Without objection, the State authenticated the surveillance tape from the A&P through the videotaped testimony
of Allen Warner, the co-manager of the store.
The prosecutor had previously moved to amend the criminal mischief charge from a third-degree crime, requiring
proof of a pecuniary loss in excess of $2000, to fourth-degree criminal mischief based upon the value of ShopRite's
lost merchandise.
(continued)
(continued)
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23
A-0760-07T4
June 5, 2009
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