State v. Almonte – Prosecutor Misconduct
Submitted by New Jersey Criminal Lawyer, Jeffrey Hark
Appellate Docket No.: A-0536-18
Decided July 27, 2021
In a recent unpublished opinion, the Appellate Division of New Jersey reviewed whether there was prosecutor misconduct when the prosecutor told of testimony that was not used in the opening statement and vouched to the credibility to the State’s witness during closing.
In State v. Almonte, Agent Chapman testified that during a sting operation conducted in late 2015 to early 2016, the DEA obtained a phone number and a code word to contact a suspected crew operating out of Philadelphia that robbed drug dealers. Because the identity of the crew members was unknown, the DEA gave the phone number to a paid CI to identify the members and infiltrate the crew.
On December 29, 2015, at the behest of the DEA, the CI contacted an individual identified as co-defendant Oviedo-Difo at the phone number acquired during the investigation. Once the CI confirmed that co-defendant Oviedo-Difo was interested in participating in a robbery, the CI arranged a meeting in New York to discuss a fabricated robbery of a stash house in the Bronx. The phone conversation between the CI and co-defendant Oviedo-Difo to arrange the meeting was recorded. According to Chapman, the DEA planned to arrest the crew members when they arrived to rob the stash house.
The CI testified that co-defendant Oviedo-Difo and an individual later identified as defendant attended the prearranged meeting in Manhattan. During the meeting, the CI informed defendants he had a contact inside an apartment containing money and drugs, and that the contact would give them access to the apartment for the robbery. The CI told defendants he would call them the day before the planned robbery and asked them how they would commit the robbery. According to the CI, co-defendant Oviedo-Difo responded that they would bring “tape and a ski mask.” When the CI specifically asked if they were “coming with guns,” both defendants responded “[o]f course” as they anticipated that the apartment occupant would be armed. The CI suggested that defendants “wear a hat and a hoodie” to conceal their identities.
The New York meeting took place in an SUV parked at a prearranged location, lasted approximately twenty minutes, and was secretly recorded by the CI, who was seated in the back seat next to defendant and had an unobstructed view of defendant. Co-defendant Oviedo-Difo sat in the driver’s seat and an unidentified male sat in the front passenger seat. The audio recording of the meeting was played for the jury during the trial and a transcript was provided as an aid.
A few weeks after the meeting, the CI called co-defendant Oviedo-Difo and told him that everything was set for the following day. On the day of the planned robbery, January 20, 2016, co-defendant Oviedo-Difo told the CI in a phone conversation that they were “getting ready to leave.” Throughout the day, Oviedo-Difo and the CI continued to communicate via telephone and the conversations were recorded.
Defendants traveled from Philadelphia in co-defendant Oviedo-Difo’s vehicle to meet the CI for the robbery in New York. However, while en route, the car began to overheat, and, at about 4:00 p.m., Oviedo-Difo told the CI that he had to pull off at a rest stop on the New Jersey Turnpike. At the request of the DEA, members of the New Jersey State Police responded to the Grover Cleveland Rest Area and arrested defendants when they observed them approach the disabled vehicle described to the officers by the DEA. Although the vehicle was not surveilled when it left Philadelphia, the DEA was aware of its location through the telephonic communications between the CI and co-defendant Oviedo-Difo.
After obtaining consent from co-defendant Oviedo-Difo, the registered owner of the vehicle, Detective Czech testified that he and other unit members searched the vehicle, beginning at 6:35 p.m. The search uncovered a semiautomatic Smith and Wesson handgun2 loaded with a large capacity magazine and hollow-point bullets hidden inside a sock secreted behind the radio in the “dashboard center console compartment” of the vehicle. Neither defendant had a permit for the gun. Suspected robbery tools consisting of two black ski masks, black gloves, duct tape, zip ties, and a black hooded sweatshirt were found on the backseat. In the rear portion of the vehicle, officers recovered a bag of suspected burglary tools consisting of screwdrivers, pliers, socket wrenches, and the like.
Defendant was convicted for robbery and appealed, arguing s that comments made by the prosecutor in opening and closing statements as well as during cross-examination of defendant require reversal of his convictions. Defendant argues the prosecutor “provided the jury with inaccurate facts about [defendant] . . . during . . . opening statement” by telling “the jury they would hear from Agent Chapman that [defendant] was a known burglary ring suspect in a pending criminal investigation.”
Because there was no objection, the Appellate Division reviewed under the plain error standard, and found that these were fair comments. In addition, the Judge provided instructions that opening statements were not evidence.
Defendant argues that in summations, the prosecutor “improperly vouch[ed] for his own witness” by telling the jury that the CI was “a reliable witness.” Defendant further asserts the prosecutor made improper “[r]eferences to the absence” of “a motive [to lie]” by asking the jury “[w]hat reason would [the CI] have to lie” and by telling the jury that “if [the CI] told a lie he could be prosecuted” and “would have jeopardized the stream of payment he received as a paid informant.”
The Appellate Division found there was no misconduct which was so egregious that it deprived defendant a fair trial. Defense attempted to undermine the credibility of the CI be extensively cross examining the CI and Agent Chapman. During summations, defense counsel continued this line of argument. The State’s summation was a measured response to defendant’s summation and thus affirmed.
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