# State of New Jersey v. John G. Formisano

> New Jersey Superior Court Appellate Division · March 28, 2025

URL: https://www.frixlaw.com/law-library/cases/10833114

## Case

- **Court:** New Jersey Superior Court Appellate Division
- **Decided:** March 28, 2025
- **Precedential status:** Unpublished
- **Opinion:** Opinion
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10833114

## How later opinions describe it (automated extraction)

- finding an off-duty corrections officer who trespassed onto his supervisor's property to commit a harassing act committed an act that "involved and touched" his employment
- finding defendant's "unsolicited" incriminating statements made without Miranda warnings while in police custody were admissible when "defendant himself initiated each and every encounter with the police" and in those situations a defendant "has only himself to blame"
- noting that if an invocation of the right to remain silent is ambiguous, the police "may ask questions designed to clarify whether the suspect intended to invoke his right to remain silent"
- noting when defendant's argument was not "alluded to, much less squarely presented, in the courts below" it "need be given no consideration here"
- concluding an off-duty state trooper could be found to have committed official misconduct when he donned his uniform and feigned a drug arrest to take the drugs to resell

## Opinion text

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE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.

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1624-22

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JOHN G. FORMISANO,

Defendant-Appellant.
_______________________

Argued February 27, 2025 – Decided March 28, 2025

Before Judges Natali, Walcott-Henderson, and Vinci.

On appeal from the Superior Court of New Jersey, Law
Division, Morris County, Indictment No. 19-12-1011.

Marcia H. Blum, Assistant Deputy Public Defender,
argued the cause for appellant (Jennifer N. Sellitti,
Public Defender, attorney; Marcia H. Blum, of counsel
and on the briefs).

Thomas M. Caroccia, Deputy Attorney General, argued
the cause for respondent (Matthew J. Platkin, Attorney
General, attorney; Thomas M. Caroccia and Steven A.
Yomtov, Deputy Attorney General, of counsel and on
the brief).
PER CURIAM

Defendant John G. Formisano appeals from his convictions for the first -

degree murder of his estranged wife, Christie Formisano, 1 the attempted murder

of Timothy Simonson, whom Christie was dating, as well as possession of a

weapon for an unlawful purpose, official misconduct, endangering the welfare

of a child, and hindering apprehension or prosecution. The judge imposed an

aggregate seventy-nine-year custodial term of imprisonment, with fifty-five and

one-quarter years of parole ineligibility. Before us, defendant challenges only

his convictions and raises the following points for our consideration:

POINT I

THE MURDER CONVICTION MUST BE
REVERSED BECAUSE THE COURT FAILED TO
PROVIDE THE JURY WITH MEANINGFUL
GUIDANCE WHEN IT ASKED FOR "A CLEAR
DEFINITION" OF THE LESSER-INCLUDED
OFFENSE OF PASSION/PROVOCATION
MANSLAUGHTER.

POINT II

THE OFFICIAL MISCONDUCT CHARGE SHOULD
HAVE BEEN DISMISSED BECAUSE THE STATE
FAILED TO PRESENT PRIMA FACIE EVIDENCE
ON THE ESSENTIAL ELEMENT THAT

1
At times the record refers to Christie by her maiden name. To avoid confusion,
we refer to Christie by her first name throughout this opinion, intending no
disrespect.
A-1624-22
2
DEFENDANT COMMITTED AN ACT RELATING
TO HIS ROLE AS A POLICE OFFICER.

POINT III

ALL OF [DEFENDANT'S] STATEMENTS SHOULD
HAVE BEEN SUPPRESSED: THE SEMINAL
INCULPATORY ADMISSIONS WERE OBTAINED
THROUGH UNWARNED QUESTIONING AND DID
NOT PERTAIN TO PUBLIC SAFETY; THE
SUBSEQUENT ADMISSIONS WERE THE RESULT
OF THE QUESTION-FIRST, WARN-LATER
INTERROGATION PROCEDURE.

A. The incriminating statements obtained in response
to both of the unwarned questions should have been
suppressed.

B. The incriminating statements obtained following the
first set of warnings should have been suppressed
because the warnings were deficient[,] and the
statements were elicited by the police.

C. The incriminating statements obtained after the
deficient warnings and the belated second set of
warnings should have been suppressed because
[defendant] was not told that his earlier damaging
statements could not be used against him.

POINT IV

THE CONVICTIONS MUST BE REVERSED
BECAUSE THE MATTER WAS INVESTIGATED
AND PROSECUTED BY THE MORRIS COUNTY
PROSECUTOR IN VIOLATION OF N.J.S.A. 52:17B-
107(a)(2) AND ATTORNEY GENERAL LAW
ENFORCEMENT DIRECTIVE NO. 2019-4, WHICH
REQUIRE THAT THE ATTORNEY GENERAL

A-1624-22
3
INDEPENDENTLY INVESTIGATE AND
PROSECUTE MATTERS INVOLVING SHOOTINGS
BY POLICE OFFICERS.

Having considered these arguments in light of the record and applicable legal

standards, we affirm.

I.

Defendant was a Newark police officer for twenty-four years. He lived at

1 Mirror Place in Oak Ridge with Christie and their two children, a son and

daughter. At the time of trial, Steven Sole, defendant's neighbor who lived at 3

Mirror Place, indicated he had met defendant approximately thirteen or fourteen

years ago and had a "friendship" with him. Sole indicated by July 2019,

defendant was not living at 1 Mirror Place and was instead living with his mother

in Livingston because defendant and Christie "were having some issues and he

thought it was best if he just moved out."

Around June or July 2019, Simonson testified he met Christie through an

online dating site. Simonson began messaging Christie on the dating site and

they eventually exchanged text messages. He and Christie met in person

approximately two weeks after they first started communicating. When he met

Christie, she informed him she was divorced.

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Simonson eventually met Christie's children and indicated he had been to

Christie's house a few times to "hang out." Simonson testified Christie's

relationship with defendant did not have any impact on his ability to see Christie,

and he had never met defendant before the incident.

On Sunday, July 14, 2019, Simonson "went over to visit" Christie around

9:00 p.m. He drove his grandmother's car, a white Ford Fusion, to her house.

At Christie's instruction, he did not park in the driveway or in front of the house

because of her "nosey neighbors" and arrived around 9:30 p.m. While the

children were asleep and Simonson and Christie were playing a board game,

Christie took a phone call in the kitchen which lasted approximately two or three

minutes. Later in the evening Simonson and Christie went to the bedroom and

"had sex."

Later that night, Christie said she "saw something out the window" that

"looked like a flashlight." Christie looked out the bedroom window and "said

he's here, it's him." Simonson "put [his] shirt on" and Christie "put on a robe

and went out the [bedroom] door." Christie closed the bedroom door behind

her.

Seconds after Christie left the bedroom, Simonson heard her yell in a

scared tone, "[h]e's got a gun, call 911." Simonson "[k]ind of froze for a

A-1624-22
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second," and then he heard three gunshots from "just outside the [bed]room ."

He stated after hearing the gunshots, he "tried to get out the window, because

[he] knew [he] would be next," but he was not able to open it. Simonson said

he was standing near the bedroom window behind the bed, and later in front of

the closet "to the right of the front window," when an individual "[s]houldered

the door and came in." Simonson testified the individual was "wearing a police

uniform" with a "[d]ark top with gold trimmings." Acting Newark Police

Lieutenant Ricardo Vitorino, defendant's then-co-worker, testified defendant

would typically wear a baseball jersey to cover his police uniform at the end of

a shift but did not wear a jersey over his uniform when he left the precinct on

the night of the incident.

Simonson saw something "start[] flashing" in the individual's hand and he

realized he "was getting shot at." He indicated he was shot several times and

"[i]t was like a hot fire poker going into you." Simonson said the individual

shooting at him was angry and yelling but he could not remember what was said.

Simonson testified after the person left the room, he "just put [his] head down,

kind of knew [he] was shot a bunch, figured it was the end, and made [his]

peace." He "laid there for quite awhile and realized that [he] hadn't died, so [he]

took [his] cell phone out to try and call 911," but his phone "had taken a shot"

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and did not work. Severely injured, Simonson was able to make his way to the

kitchen where he located Christie's phone and called 911 to report the shooting.

Meanwhile, Christie had fled the house and sought help. Sole was at home

with his wife and mother watching TV when he heard his Ring doorbell and was

alerted through the app on his phone. As Sole approached the front door to

answer, he "heard a few loud bangs" which sounded like they were coming from

"directly in front of [his] house."

Around the same time, another neighbor, Nancy Spetz, was at home with

her husband, Charlie, and three of her children. Nancy testified her son, Steven

Spetz, was watching TV downstairs when she went upstairs to her bedroom. She

told Steven to lock the front door after his two siblings returned home for the

night. As she was getting ready for bed, Nancy "heard a noise" and "thought

there was a bear outside." Nancy identified defendant at trial and although she

was not very close to him, she knew he was a Newark police officer.

Once she heard the noise, Nancy looked out her bedroom window and

"saw [defendant] . . . walking fast into [her] driveway," "coming from his

house . . . walking toward [her] front door" wearing a dark "police uniform

. . . ." Steven was watching TV when he "heard a thud into the door" and then

"heard two or three 'helps,'" which he identified as a woman's voice. Steven

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started walking towards the front door when he "heard gunshots and . . . dropped

on all fours." Steven thought he heard "[t]hree or four" gunshots.

Nancy stated once defendant was by her front door, she saw "him raise his

hand, and [she] saw a gun in his hand, and he shot it." Nancy was unable to see

the front steps of her house from her bedroom window. Nancy said she "lift[ed]

up [her] window" and said, "John, I see you." According to Nancy, defendant

"looked up at [her,] and he brought his eyes back down to what he was looking

at the front door and he shot . . . two or three more times." Nancy then went

into her bathroom and dialed 911. The recording of the 911 call was played for

the jury and entered into evidence at trial:

OPERATOR: 911. What's your emergency?

[Nancy]: Hi. I live at 5 Mirror Place right in the White
Rock section and a man just shot his wife in front of my
house.

OPERATOR: He just what?

[Nancy]: You gotta hurry up because she's dying in
front of my house, please.

OPERATOR: Okay, ma'am. It's 5-what? What town
are you in, ma'am?

[Nancy]: 5 Mirror Place, right off of . . . White Rock
Boulevard, please.

OPERATOR: Okay. 5 Mirror Place.

A-1624-22
8
[Nancy]: He's a Newark cop. He's a Newark cop, and
he lives on the corner. He shot her, I saw him. I saw
him through my window.

OPERATOR: Okay, ma'am. Ma'am, hold on, take a
deep breath for me, okay? I'm gonna—

[Nancy]: He had his uniform on—

OPERATOR: Okay. Give me one second, all right?

[Nancy]: She's dying in front of my house.

OPERATOR: I'm—I'm—I have to contact Jefferson,
ma'am, okay?

[Nancy]: Yes, yes, hurry up, please.

After hearing the gunshots, Steven opened the door and "saw [a woman]

laying down with bullet wounds in her chest." He testified he did not know who

the woman was at the time. Steven stated, "because she had a white shirt on,"

he could see blood coming from her chest. He recalled the woman "tried to say

something, [he] assumed it was help, and then blood started pouring out of her

mouth."

When Sole opened his front door and stepped out onto his front steps, it

triggered the motion light on the right of the door, and he was able to see

defendant "[fifteen] or [twenty] feet in front of [him] on [his] front lawn."

Defendant was wearing "[h]is police uniform," and Sole saw him "running

A-1624-22
9
across [his] lawn" from the direction of 5 Mirror Place back toward the direction

of his house at 1 Mirror Place. Sole said to defendant, "what's up, John, or

what's up, Johnny." Defendant replied, "[j]ust doing busy work" and told Sole

to "[g]o get the kids."

Detective Supervisor Steven Gangi of the Morris County Prosecutor's

Office reviewed the Ring doorbell footage from Sole's house. The following

footage was played for the jury at trial:

[FIRST] FEMALE VOICE: Help me. I've been shot.

[FIRST] MALE VOICE: What's up?

[SECOND] MALE VOICE: Just taking care of some
busy work. Can you go get the kids?

[FIRST] MALE VOICE: What kids? Get inside. Get
inside.

After that exchange, Sole looked over to the area of 5 Mirror Place and

"saw Christ[ie] laying on the front steps." Sole knew it was Christie

"[i]mmediately" because of her "red hair." He ran over to her and "saw blood

pooling." Sole observed Charlie at his front door and he "reached over to

[Christie] and . . . checked her pulse" and confirmed she had no heartbeat. Sole

then ran back to his house, pushed his wife inside, and "said I think John just

shot Christ[ie]."

A-1624-22
10
Joseph Diliberto, Jr., who lived across the street from 1 Mirror Place,

testified he was sleeping when he heard gunshots "from across the street"

through his open bedroom windows. Diliberto also identified defendant at trial

as his neighbor. At first, Diliberto heard "two or three shots, and then probably

maybe five minutes later there was another one or two." Diliberto also heard

"somebody banging on a door asking for help because they were shot." He could

tell the voice "was a woman['s]." Diliberto "tried looking through the side

window to see what was going on because there w[ere] other people outside, and

[he] could see on the one neighbor's porch there was something laying on it ."

He then saw "somebody walking across the yards and get in a white car and

drive away." The person was wearing a "[d]ark jacket and pants," and the white

car was located on White Rock Boulevard. Diliberto, who is an auto mechanic,

recognized the car as "a white Mazda, similar to what John drove."

Gangi also reviewed security footage obtained from Sole's house. The

footage contained video, which was played for the jury, but no audio. He

testified the footage "basically capture[d] a white sedan at approximately 11:10

p.m. coming from White Rock Boulevard, passing 1 Mirror, 3 Mirror" and then

"coming back . . . towards White Rock Boulevard." He then indicated the

footage showed "an individual come from the front of 1 Mirror and stand just

A-1624-22
11
beneath the . . . master bedroom window" and "stand there for a couple of

minutes" until "at approximately 11:16:44 and 11:16:48 [p.m.] you'll see a flash

of light. And then just after that, soon after that, you'll see the individual leave

this area and then walk back towards the front of 1 Mirror Place."

Gangi testified the footage also showed that around 11:15 p.m., "a female

individual . . . run up to the . . . front porch of 3 Mirror." The footage then

showed "an individual come from right to left along the top of your screen

running across the driveway, and then across basically the front lawn of 3

Mirror, towards the direction of 5 Mirror Place," and "shortly after . . . you're

going to see an individual coming back from that area, back from 5, across 3,

towards number 1 Mirror Place." Around 11:20 p.m., Detective Gangi indicated

the footage showed a female individual ring the doorbell at 3 Mirror Place "and

at that time you're going to observe some severe lacerations to this person's right

hand" and "[t]hey're also going to be holding their left side with their lef t arm."

The footage also showed that same female "look[] around frantically, and then

they're going to exit left towards 5 Mirror Place."

Simonson indicated he was on the phone with 911 for forty-eight minutes

until law enforcement arrived. At some point while waiting for them,

defendant's daughter came out of her bedroom and stood in the doorway and

A-1624-22
12
"asked where mommy was," before Simonson "convinced her to go back into

her room, because [he] didn't know what was going on and she didn't need to

see any of this."

Simonson was taken to Morristown Hospital, where he stayed for seven

days and underwent surgeries to repair his leg. Simonson sustained bullet

wounds in his stomach, left bicep and triceps, right triceps, two in his left thigh ,

and he also sustained injuries to his lip and left hand. One of the bullets in his

left thigh hit his femur and shattered it, requiring a titanium rod.

Livingston Police Department Patrolman Brian Kelly was called in for "an

alleged homicide suspect traveling in our jurisdiction" based on "a ping on

[defendant's] phone." He testified he and the six other officers dispatched were

told to look out for "[a] white Mazda 6" and were advised the suspect was a

Newark police officer. Kelly stated the officers were gathered at Heritage

Middle School in Livingston when "the white Mazda 6 passed [his] vehicle on

the right-hand side of Foxcroft Drive." He "conducted a felony stop" of the car

and only saw one person in it. As he approached the car, Kelly was able to

confirm the driver was the alleged suspect based on a Department of Motor

Vehicles picture his sergeant had given him. He testified he subsequently

A-1624-22
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identified the suspect through the course of his investigation as defendant and

identified defendant at trial.

Kelly and the other officers surrounded the car. When he reached the

white Mazda, he saw defendant was wearing "navy blue" police uniform pants,

"a baseball jersey, and a hat." The officers ordered defendant out of the car, "he

complied, he had his hands up," and they "searched him and handcuffed him at

that point" and put him in the "back of [Kelly's] patrol vehicle." Kelly indicated

the Mobile Video Recording (MVR) on his patrol car activated when he turned

his emergency lights on to make the stop, and once he put defendant into the

back of his car, he "turn[ed] the camera towards" him. He said defendant "was

complaining about his handcuffs being too tight." Kelly stated he was aware

defendant was being arrested for "[a]n alleged homicide" and he "was advised

that it was a handgun."

While he was adjusting defendant's handcuffs, defendant indicated the gun

"was in the trunk" of his car. The MVR recording in Kelly's police car was

entered into evidence and played for the jury at trial. In the recording, while

Kelly was adjusting defendant's handcuffs, defendant told Kelly: "I'm sorry,

man. I just—I just snapped. And all I've been doing is driving around in circles,

waiting for you guys. . . . I didn't know if I should . . . kill myself." Kelly told

A-1624-22
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defendant, "[w]e're going to get you help." According to Kelly, defendant's

demeanor was "pretty nonchalant" and he "complied with everything" the police

asked.

Kelly brought defendant into Livingston police headquarters to be

processed. Before doing so, Kelly testified he advised defendant of his Miranda2

rights even though he had no plans to question him. Kelly explained defendant

made several statements while in transport to the police station that were not

made in response to any questioning by him. Those statements , detailed below,

were also captured on the MVR recording:

[DEFENDANT]: I was—I was going to shoot myself,
but.

OFFICER KELLY: Don't do it, man. We'll get you
help.

[DEFENDANT]: I couldn't explain, I couldn't even
think, man. I got a—I got a three-year-old and an eight-
year-old sleeping in the room right next to it, man.

OFFICER KELLY: Yeah.

[DEFENDANT]: Do you think I'm pitiful?

OFFICER KELLY: What's that?

[DEFENDANT]: Do you think I'm pitiful?

2
Miranda v. Arizona, 384 U.S. 436 (1966).
A-1624-22
15
OFFICER KELLY: I don't. I just think you need help.

....

[DEFENDANT]: I've been a cop for [twenty-four]
years, man.

OFFICER KELLY: Yeah.

[DEFENDANT]: Never—

OFFICER KELLY: Your boys are looking for you,
man.

[DEFENDANT]: I never shot anyone before. All those
years. I filed for divorce like two weeks ago . . .

....

[DEFENDANT]: I'd never hurt the kids. I can't believe
it, but it happened so fast.

OFFICER KELLY: Yeah.

[DEFENDANT]: Walked in, I had my uniform on, gun
on, you know. . . . My daughter left her glasses in my
car, you know.

OFFICER KELLY: Yeah.

[DEFENDANT]: So I went up there to just return the
eyeglasses at my house. And right on, you know, right
on my bed, man, right, right in—right in my bedroom.

OFFICER KELLY: Yeah.

[DEFENDANT]: Thanks for listening, bro, I
appreciate it.

A-1624-22
16
Early in the morning on July 15, 2019, Detective Michael Bost with the

Morris County Prosecutor's Office arrived at the Heritage Middle School area

where defendant's car was located. Bost secured the car and searched it along

with Detective Louis Goncalves of the Morris County Prosecutor's Office.

Goncalves recalled the car was "a white Mazda 6, four door." In the trunk of

the car, Goncalves found, among various other items and articles of clothing, "a

Sig Sauer P229, a 9-millimeter" with a "round inside the chamber." Goncalves

indicated the gun found in the trunk "was loaded."

Later that morning, Sergeant Michael Puskas of the Morris County

Prosecutor's Office and Detective Eric Sudak of the Jefferson Township Police

Department interviewed defendant at the Jefferson Township police station. At

that point, Puskas had not "receive[d] a great deal of information, all [he] knew

was that somebody had been placed in custody in Livingston" "and that he was

being transported to Jefferson." Puskas testified he first met defendant in the

interrogation room and gave him a blanket because he was cold.

Puskas also stated the entire interview with defendant was recorded and

he advised defendant of his Miranda rights using "the form provided by the

Morris County Prosecutor's Office." Puskas stated defendant initialed that he

understood his rights and circled and initialed on the Miranda form that he

A-1624-22
17
wished to speak to police. The first twenty-five minutes and fifty-five seconds

of the recorded interview with defendant were played for the jury at trial and

entered into evidence.

After Puskas read defendant his Miranda rights, defendant stated he

"want[ed] to" talk to police "but it's not in my best interest." Puskas clarified

"you tell me what you want to do, because you can, as I said to you, you can

stop at any time" and told defendant, "I can't tell you what to do ." Defendant

then agreed to speak to police and signed the waiver form. Defendant indicated

he and Christie had been together "eight and a half years," but they had "just

began the process of divorce." He said they "couldn't make it work," and

Christie had become "very mean to [him] for like no reason and, . . . cruel all

the time." Defendant stated he would primarily stay at their house at 1 Mirror

Place and he "would sleep on the couch," however, some of the time he would

stay at his mother's house.

Defendant stated he was a sergeant with the Newark Police Department

and that his normal shift was "[t]wo to ten." He explained he was at the house

that night because Christie had called him to tell him their daughter had left her

glasses in his car. Defendant said he got off work on July 14, 2019, at 10:00

p.m. and got to his house around 11:00 p.m. When he was outside the house, he

A-1624-22
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"called the house, but it rang, it rang two, three times, and [Christie] didn't

answer." Defendant then said he entered the house using his key. He stated he

went into the house with an off-duty holster which contained his duty weapon,

"a Sig Sauer 9[-]millimeter P-229."

According to defendant, he got to the top of the stairs and saw Christie

wearing a bathrobe. He said Christie was "like dressed, makeup and hair, but

like if she was going out" and "she was basically like not wearing anything under

the bathrobe practically." Christie was "asking [defendant] if [he] had a camera

in the house" and he said no. Defendant said Christie stated, "I have someone

here" or "[s]omething to that effect."

Defendant explained he "seriously blacked out" and he "looked down into

[his] . . . bedroom, and the door was closed" "[s]o [he] knew somebody was in

[his] bedroom and [he] just started to go over there." Christie "started fighting

[defendant] to keep [him] from going . . . into the room" and defendant "heard

somebody, you know, in there," which sounded like "a male's voice." At that

point, defendant "just lost it." He said it was "so insane" and it "was just a

combination, just like not being there, like surreal. And, and then when it was

over, I just you know, I went back to my car and I drove off."

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Defendant confirmed in the interview he parked his car on the street rather

than in his driveway "[b]ecause [he] wasn't planning on staying." Once he left

the scene, defendant "called up . . . [his] two . . . best friends to say [goodbye]

to them, because [he] didn't plan on living." He "thought about killing

[him]self" or thought he would "just drive to California." He said he "got rid of

[his] phone" but did not "remember how" before he was stopped by Kelly and

the other officers.

Defendant explained he "would never hurt [his] kids or anybody else," but

he could not "understand why she would do that" or why Christie

"would . . . sleep with somebody in [his] bed and with [his] kids home." He

stated "[n]othing" was going through his mind when he was in the house and it

"just was pure . . . rage." Defendant knew Christie "had started dating some guy

for like four dates or whatever." According to defendant, he told Christie about

"a week" before the incident "not to bring him by the kids or anything like that."

He told police he had been prescribed anxiety medication previously, but he had

not taken the medication for about a day and a half before the incident. He stated

he had "never shot anybody on duty."

Around 7:00 a.m. on July 15, 2019, Bost searched defendant's bedroom at

his mother's house. Bost found in the bedroom "a Newark Police Department

A-1624-22
20
duffle bag" and "multiple plastic bins," one of which contained a handgun that

was "later determined to be a Smith & Wesson model 457, .45 caliber ." The

gun was "fully loaded with seven rounds in it," but "there was no round in the

chamber." Bost also located defendant's cell phone at 34 Baker Road, a private

residence that was about "a mile and a half" from where defendant was stopped

in his car and arrested. The owner of that home was in the process of moving

and had "a large dumpster located at the end of the driveway." Bost found "an

iPhone in a black case, and that was leaning up against an E-ZPass right

underneath the dumpster." The E-ZPass had the same serial number that

matched defendant's active E-ZPass account.

Gangi reviewed a forensic examination of the iPhone and determined the

user of that phone was defendant. Gangi obtained records for defendant's phone

from May 1, 2019, through July 15, 2019. He also reviewed records for

Christie's cell phone for the same time-period. There were no records of any

calls between defendant and Christie's phones on July 14, 2019. The last call

between defendant and Christie's phones was on July 13, 2019, around 11:48

a.m. Gangi stated defendant had Christie's contact saved in his phone in a

derogatory manner. Gangi determined defendant had changed Christie's contact

name sometime after June 8, 2019.

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Gangi also reviewed texts between defendant and Christie's phones from

May 3, 2019, through July 14, 2019. On June 30, 2019, defendant texted

Christie:

I'm so hurt. I'm so hurt. Please, please, don't have any
more of your dates come into our home or spend time
with our kids. It's too soon. I'm hurting so bad inside
that this happened. Please. I've never begged you for
anything before, but I beg you not to do this. When the
time comes and you find the next great one to settle
down, then . . . let's talk about it again. I'm in so much
pain inside. Please if you have any love left for me,
don't connect anyone to our kids and our home. It's my
home and my kids too, and things are moving so fast.
This is all I ask of you to keep sacred for us. I will
never let the kids see me with another woman until I
talk with you first. I'm in so much pain from that, I'm
in so much pain.

Christie responded to defendant the same day:

I'm sorry. I never meant to hurt you. I will not bring
anyone around the kids right now, if that's how you feel.
Please understand, it wasn't a big thing. He came to . . .
the door, was introduced as a friend, and he had a drink
while I got ready and the kids played on the deck.
Nobody is trying to replace you. The kids are with me
24/7. It's hard to sneak around so they don't see anyone.

Defendant replied to that message on the same day, asking Christie, " [w]hy

would you hurt me like that?" and indicated she was being "insensitive" and

"cruel."

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On July 13, 2019, at 6:12 p.m., Christie texted defendant asking if the

daughter's glasses were in his car. Defendant replied at 6:16 p.m., "[y]es, she

left them in the car." Approximately forty minutes later, defendant texted

Christie:

First of all, [our daughter] tells me that you are really
sad about the divorce. Second, the only thing I told her
about this guy Tim is not to talk to him because I don't
know him and I don't want her to get attached to anyone
that may be coming in and out of her life. She doesn't
need more loss. The only sadness I tell her about is how
sad I am when I have to leave her and that's the truth of
the situation. I know you are not sad at the divorce even
though she says you are. Maybe you should ask
yourself why she keeps telling me that.

Christie replied to defendant roughly an hour later:

She's probably just telling you that to make you feel
better. . . . It's not okay to interrogate her when you see
her. It's causing her mental trauma, and if anyone gets
barred from seeing her, it will probably be you after she
talks to the judge. And you should not be asking her
not to speak to someone I am dating. She has barely
met him, you're making her uncomfortable, and we
know full well it had nothing to do with their well-
being. . . . The only motivation you have behind asking
her not to speak with Tim is to try to make me as
unhappy of a person as you and you have admitted that
yesterday. Funny thing is my happiness isn't contingent
on Tim. My happiness comes from having my freedom
from you. It's not something you can take away.

There were no texts between the phones on July 14, 2019.

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23
Gangi also reviewed records for the landline phone at 1 Mirror Place,

defendant and Christie's house. Gangi testified there were two calls from

defendant's cell phone to the landline on July 14, 2019, one call at 9:32 p.m.

which was "an [eighty-eight] second call," and a second call at 11:16 p.m. which

was "a zero second call."

Detective Sergeant Christina Kovacs of the Morris County Sheriff's Office

processed the scene. Kovacs collected "several shell casings and . . . some

swabbings of blood" from the front stoop of 5 Mirror Place. Kovacs also

testified "[t]he deceased victim's body [was] located on the front step" of 5

Mirror Place. Kovacs also collected evidence from 3 Mirror Place including

"some bloodstains" and video evidence.

At 1 Mirror Place, Kovacs testified there was blood on the floor in the

entryway and a trail of blood going up the stairs. There was also "bloodstains

on the wall" at the top of the stairs. In the hallway leading to the master

bedroom, Kovacs collected three shell casings. In the bathroom, Kovacs

documented "blood" on the floor and on the wall and collected "four shell

casings . . . from the floor in that bathroom." The bathroom contained "holes in

the wall; blood on the floor; a pair of glasses on the floor; and a bullet fragment

on the floor." In the master bedroom, Kovacs "observed the door to the closet

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24
to be off its track and had several defects in it," and "[t]here was blood on the

floor as well as some other ballistics evidence, shell casings." The door frame

was "damaged" and "had been broken in." Kovacs also found a landline phone

in the master bedroom. Kovacs and other investigators were able to view the

call log on that phone, which showed a call from defendant on "[July 14] at 9:32

p.m.," and another call from defendant on "[July 14] at 11:16 p.m."

According to William Stitt, an expert in firearms capability and

comparisons, all the recovered bullets or fragments of bullets from the scene,

other than two items that were inconclusive, were fired from a Sig Sauer P229.

Stitt also concluded all the shell casings collected from the scene were fired

"[t]hrough the Sig Sauer."

Shooting reconstruction expert Detective Sergeant Michael Abate of the

Morris County Sheriff's Office determined there were "two shooting incidents"

at 1 Mirror Place. Abate testified the shooter was first "present in the doorway

of the bathroom on the second floor of 1 Mirror Place" and "the shooter was

shooting into the bathroom, targeting the back wall." Second, the shooter was

"in the bedroom to the front of the closet" and "was shooting into the closet of

the bedroom." Abate testified 5 Mirror Place "was the third shooting incident

that occurred." Abate determined "the shooter was located close to the porch,

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25
standing in the doorway" of 5 Mirror Place and "was firing toward the porch

area front of the house."

Bloodstain pattern analysis expert Detective Dina Gardner of the Morris

County Sheriff's Office similarly concluded "[i]n the second[-]floor bathroom

of 1 Mirror Place, the victim Christ[ie] Formisano sustained injuries which then

resulted in blood[]shed," and the "drip stains . . . are consistent with someone

being in an upright or standing position." The "drip stains were followed from

the bathroom, through that small portion of the hallway, down the stairs, out the

front door . . . across the driveway of 3 Mirror Place, up the stairs, and at the

front door where there was another transfer pattern on the glass storm door" of

3 Mirror Place. The drip stains continued "down the right-hand side of the

staircase at 3 Mirror Place, and then subsequently on the driveway, . . . and then

the front stairs and front porch area of 5 Mirror Place, where Christ[ie]

Formisano was located deceased."

Dr. Di Wang conducted Christie's autopsy. Dr. Wang was qualified as an

expert in forensic pathology and had conducted over 3,000 autopsies. Dr. Wang

concluded Christie sustained a minimum of six and a maximum of nine gunshot

wounds. She was shot in the head, chest, torso, arm, wrist, and fingers. Dr.

Wang testified the wounds to the torso and extremities were "[n]ot critically

A-1624-22
26
lethal" and Christie could have survived them if she had received timely medical

help. Dr. Wang stated, however, the shot to the chest would have been "almost

nearly a hundred percent . . . immediately lethal" and indicated Christie died

"[w]ithin minutes" of being shot in the chest. Dr. Wang determined Christie's

cause of death was "multiple gunshot wounds of head, torso, and extremities"

and the manner of death was "homicide." Dr. Wang also conducted a toxicology

examination, which showed "no material found from that panel they tested,

which are usually commonly used or abused drugs or medication."

Defendant did not testify at trial. He called one witness to support his

diminished capacity defense, clinical psychologist Dr. Gerard Figurelli who

issued multiple reports and conducted a psychological evaluation of defendant

after interviewing him seven times and reviewing relevant documents from the

State's investigatory file, including defendant's interviews and medical records.

Dr. Figurelli stated he performed "[t]housands" of psychological evaluations and

was qualified as an expert in clinical psychology.

According to Dr. Figurelli, defendant had "a major depressive disorder"

and "post[-]traumatic stress disorder" (PTSD) before the incident on July 14,

2019. He concluded this in part because defendant had appetite loss, sleep

difficulties, a depressed mood, "and he was at one point experiencing suicidal

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27
thoughts" and "had actually contacted the [c]op to [c]op suicide hotline"

previously. Defendant also "was experiencing . . . a lowered sense of self[-

]esteem." Dr. Figurelli testified defendant's job as a Newark police officer had

contributed to his PTSD and he tended to "repress and deny" the trauma he had

experienced on the job. Several assessments for measuring hopelessness,

suicide, and anxiety as well as a personality assessment inventory determined

defendant "was experiencing various symptoms of depression and anxiety."

In Dr. Figurelli's opinion, on July 14, 2019, defendant had "an acute

dissociative reaction to a stressful event." Dr. Figurelli stated such a reaction

can "elicit[] within the individual a very powerful and . . . extreme[] emotional

reaction." He testified defendant went into a "dissociative episode" when

defendant indicated he "snapped and . . . blacked out." In a dissociative episode,

Dr. Figurelli stated a person is "not able to engage in the type of rational control

and rational regulation of their behavior as they otherwise might if they were

simply angry and had not entered into a dissociative state." Further, there is a

"disconnection between reason and emotion" and a "lack of . . . agency" over

one's behavior. According to Dr. Figurelli, defendant's preexisting conditions

"left [defendant] particularly vulnerable" to a dissociative episode. Dr. Figurelli

opined due to the dissociative state defendant was in during the incident on July

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28
14, 2019, he could not have "act[ed] in a purposeful, knowing, and reckless

manner."

The State presented a rebuttal expert, Dr. Louis Schlesinger, who was

qualified as an expert in forensic psychology, has been a forensic psychologist

for forty-six years, and conducted a forensic examination of defendant,

including two interviews. He reviewed Dr. Figurelli's report and similar

documents to Dr. Figurelli, including police reports, interviews, witness

statements, defendant's Ann Klein records, and other medical records. Dr.

Schlesinger indicated during the interviews defendant was "friendly,"

"pleasant," "engaging," and "very polite." He also administered various

psychological tests on defendant.

The personality test Dr. Schlesinger administered indicated defendant was

"mildly depressed" and had "inner tension and anxiety," "repressed anger," and

"low self[-]esteem or feelings of inadequacy." Dr. Schlesinger found defendant

had "[o]ther [s]pecified [d]epressive [d]isorder with anxiety or anxious distress ,"

which is "a reactive depression basically" and was largely due to defendant's

divorce. Dr. Schlesinger testified this disorder was "on the more mild end" and

many of defendant's reported symptoms, such as sadness, insomnia, poor

appetite, and weight loss, helped him come to this conclusion, although

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Schlesinger noted defendant's symptoms are "to be expected of almost

everybody who's going through a divorce." He concluded at the time of the July

14, 2019 incident, defendant was depressed. Dr. Schlesinger also found

defendant had "mild compulsive traits."

Dr. Schlesinger also found defendant had an "acute dissociative reaction

to a stressful event" on July 14, 2019, triggered by the shootings, which included

"dissociative symptoms" and "depersonalization and derealization." According

to Dr. Schlesinger, both depersonalization and derealization "are common

symptoms in the general population" and are a reaction to violent behavior. Dr.

Schlesinger found defendant's reported symptoms of feeling surreal and

watching himself over his shoulder during the July 14, 2019 incident were "mild

symptoms" of depersonalization and derealization.

In his opinion, "[s]o many of those actions that [defendant] did were

intentional, they were purposeful." For example, Dr. Schlesinger believed

defendant following Christie from the house at 1 Mirror Place to neighbor's

houses was "highly intentional. That's not just having mental intent, that's

having intent and physically going, trying to reach your goal, your intended

goal." Further, defendant's conversation with Sole that he was "doing busy

work" and "[l]eaving the crime scene shows consciousness of guilt and an

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30
awareness of wrongfulness in your behavior." Overall, he opined defendant

"clearly could form purposeful, intentional intent, and he was totally aware and

had knowledge of what he was doing before, during, and following the

homicide."

II.

Defendant argues in his first point the judge failed to provide the jury with

meaningful guidance when it asked for clarification and a clear definition of

passion/provocation manslaughter. We are not persuaded.

At the charge conference, defendant requested the jury be instructed on

passion/provocation manslaughter as a lesser included offense to murder and

contended there was "a rational basis for it to be presented" to the jury. The

State "completely disagree[d] that this is a passion/provocation case, but that's

not the standard." The State ultimately "agree[d]" with defendant stating,

"where the defendant asks for the jury to be instructed on it" the judge should

give the charge. The trial court was not sure passion/provocation applied

because "rage, emotion alone, is not enough." The judge allowed defendant to

draft and propose a passion/provocation instruction, but he "s[aw] some real

issues with it." Ultimately, the judge told defendant the charge would likely be

included in the jury instructions since "the State tends to agree with you ."

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31
The judge accordingly instructed the jury on purposeful and knowing

murder and on the lesser included offense of passion/provocation manslaughter.

During deliberations, the jury sent out a note requesting a "clear definition of

passion and provocation." In response, the judge stated, "I would be inclined to

explain to them that I cannot expand or give them any different definition of

passion/provocation than that which I gave them in the jury instructions ," and

the judge indicated he "would be happy to read it for them again if they would

prefer to hear it read out loud." The State thought "it would make sense for the

[c]ourt to read it again" even though the jury had a copy of the charge.

Defendant "agree[d] with the State that respectfully we would ask your Honor

to read it to them."

The trial court brought the jury back out and told them, "I am not able to

expand or differentiate from the instruction that I gave you previously with

respect to passion/provocation. However, I am going to read it for you again ."

The judge then reread the charge on passion/provocation which tracked the

Model Jury Charges (Criminal), "Murder, Passion/Provocation and

Aggravated/Reckless Manslaughter" (rev. June 8, 2015). Defendant did not

object.

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32
Appropriate and proper jury instructions are essential for a fair trial. State

v. Scharf, 225 N.J. 547, 581 (2016). When a defendant alleges error in the jury

charge, the charge must be reviewed as a whole. State v. Loftin, 146 N.J. 295,

379 (1996). Instructions given in accordance with the model jury charge, or

which closely track the model jury charge, are generally not considered

erroneous. State v. Ramirez, 246 N.J. 61, 70 (2021). However, "[a]n erroneous

jury charge 'when the subject matter is fundamental and essential or is

substantially material' is almost always considered prejudicial." State v.

Maloney, 216 N.J. 91, 104-05 (2013) (quoting State v. Green, 86 N.J. 281, 288

(1981)).

It is firmly established that "[w]hen a jury requests clarification," the trial

court "is obligated to clear the confusion." State v. Conway, 193 N.J. Super.

133, 157 (App. Div. 1984). "An appropriate judicial response requires the judge

to read the question with care to determine precisely what help is needed." State

v. Parsons, 270 N.J. Super. 213, 221 (App. Div. 1994). While such help

"ordinarily requires explanation beyond rereading the original charge," Pressler

& Verniero, Current N.J. Court Rules, cmt. 7 on R. 1:8-7 (2024), "many times

it is entirely appropriate" for the trial judge to reread the model jury charge,

State v. Berry, 254 N.J. 129, 146 (2023). There is no requirement that the judge

A-1624-22
33
reread the entire charge when the jury requests specific definitions, and "[t]he

failure of the jury to ask for further clarification or indicate confusion [after

readback of the jury charge] demonstrates that the response was satisfactory."

State v. McClain, 248 N.J. Super. 409, 421 (App. Div. 1991).

Because defendant did not object to the judge's decision regarding the jury

note, we address it under the plain error standard. See R. 2:10-2.; State v. Clark,

251 N.J. 266, 286-87 (2022). That standard requires us to determine: "(1)

whether there was error; and (2) whether that error was 'clearly capable of

producing an unjust result,' R. 2:10-2; that is, whether there is 'a reasonable

doubt . . . as to whether the error led the jury to a result it otherwise might not

have reached.'" State v. Dunbrack, 245 N.J. 531, 544 (2021) (quoting State v.

Funderburg, 225 N.J. 66, 79 (2016)). "To determine whether an alleged error

rises to the level of plain error, it 'must be evaluated in light of the overall

strength of the State's case.'" Clark, 251 N.J. at 287 (quoting State v. Sanchez-

Medina, 231 N.J. 452, 468 (2018)).

We are convinced the judge did not commit error, let alone plain error, in

the manner in which he responded to the jury's note. The jury asked for the

definition of passion/provocation, and the judge reread the jury charge which

defined and described passion/provocation manslaughter. In doing so, the

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34
judge's instruction tracked the model charge verbatim. The judge's rereading

the model charge in response to the jury's note was "entirely appropriate."

Berry, 254 N.J. at 146; see State v. Cotto, 471 N.J. Super. 489, 543 (App. Div.

2022) ("[A] jury charge is presumed to be proper when it tracks the model jury

charge because the process to adopt model jury charges is 'comprehensive and

thorough.'" (quoting State v. R.B., 183 N.J. 308, 325 (2005))); Ramirez, 246

N.J. at 70 (same). Our courts have found that rereading the model charge is

often sufficient in response to questions from the jury about definitions or other

legal questions. See State v. Gorthy, 226 N.J. 516, 540-41 (2016) (rereading

relevant statutes and elements of offense constituted no error in response to legal

questions by the jury); State v. Scher, 278 N.J. Super. 249, 271 (App. Div. 1994)

(finding no error when the judge "repeat[ed] the instructions previously given"

when the jury asked about the distinction between reckless manslaughter and

death by auto and asked for the definition of "casual drinking" because it "could

think of no more meaningful way to apprise the jury of the applicable legal

principles").

Further, once the judge reread the charge to the jury, they did not ask for

further clarification, "demonstrat[ing] that the response was satisfactory."

McClain, 248 N.J. Super. at 421. We also note the model jury charge does use

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35
examples. For example, the judge instructed the jury, "words alone do not

constitute adequate provocation" but "a threat with a gun or knife or a significant

physical confrontation might be considered adequate provocation."

We also reject defendant's argument the judge was obligated to have

tailored the supplemental instruction to the facts of the case. We have found in

certain circumstances a court is required to "mold" the model jury charge to the

facts of a case when it includes a "statement of relevant law" which, "when

divorced from the facts, was potentially confusing or misleading to the jury."

Cotto, 471 N.J. Super. at 543 (quoting State v. Robinson, 165 N.J. 32, 42

(2000)). Tailored instructions may also be useful "in a protracted trial with

conflicting testimony." State v. Concepcion, 111 N.J. 373, 380 (1988). We

have "emphasize[d]," however, "there is no principle requiring that in every case

a court must deliver a specifically tailored instruction relating . . . the facts of

the case to the applicable law." Cotto, 471 N.J. Super. at 544 (quoting State v.

T.C., 347 N.J. Super. 219, 240 (App. Div. 2002)). "When the facts are neither

complex nor confusing, a court does not have to provide an intricate discussion

of the facts in the jury charge." Ibid.

The facts presented to the jury were neither confusing nor intricate and

there was no "conflicting testimony." Concepcion, 111 N.J. at 380. Rather, the

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testimony was straightforward and corroborated by multiple eyewitnesses, video

surveillance, shooting reconstruction and bloodstain analysis, and defendant's

own statement to police that defendant went to his house on July 14, 2019,

deduced that Christie had a man in her bedroom, and subsequently began

shooting, injuring Simonson and eventually killing Christie after tracking her to

the neighbor's house. These are unlike the complex facts in Berry, relied upon

by defendant, which involved the trial of three leaders of a multi-level narcotics

trafficking network and which necessitated a tailored instruction as to each

defendant's supervisory role in the network. 471 N.J. Super. at 114-15. Simply

put, there was no need for the trial court to have "provide[d] an intricate

discussion of the facts in the jury charge." Cotto, 471 N.J. Super. at 544.

Moreover, defendant did not object to the judge rereading the charge, but

instead "agree[d]" to that course of action, thus "there is a presumption that the

charge was not error and was unlikely to prejudice . . . defendant's case." State

v. Montalvo, 229 N.J. 300, 320 (2017). Defendant also did not request tailoring

instructions at the charge conference and did not request tailoring for the

readback after the jury's note. Ultimately, there is nothing to show that the judge

rereading the model jury charge on passion/provocation manslaughter in

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37
response to the jury's note was "clearly capable of producing an unjust result."

R. 2:10-2.3

III.

Defendant argues in his second point the official misconduct charge

should have been dismissed pre-trial because the State failed to present prima

facie evidence to the grand jury that defendant committed an act related to his

role as a police officer. Again, we disagree.

Gangi was the only witness the State presented to the grand jury. He

testified consistent with the evidence adduced at trial regarding the shootings of

Christie and Simonson. With respect to official misconduct, Gangi stated he

was aware defendant was a Newark police officer at the time of the shootings,

had served in that role for twenty-four years, and was soon to be promoted to

lieutenant. He also testified Nancy stated she saw defendant from her bedroom

window and "explain[ed] that he was dressed in a dark police uniform[,] and he

was shooting a black handgun in the direction of her front door" at 5 Mirror

Place. Gangi also testified that Sole had indicated that after he heard shots, he

3
In light of our conclusion the court committed no error when it instructed and
re-instructed the jury, we do not address the State's alternative argument there
was no rational basis in the record for a passion/provocation charge or
conviction.
A-1624-22
38
opened his door and saw defendant "walk across his front lawn dressed in

his . . . full police uniform." Gangi further indicated Simonson had described

the shooter as "wearing a dark blue or black police uniform with yellow trim ."

He further confirmed several nine-millimeter spent cartridge casings were

located at the scene and police later located a Sig Sauer Model P229 nine-

millimeter pistol in defendant's trunk after he had been located following the

incident. He testified the pistol "was assigned by the Newark Police Department

as [defendant's] duty firearm" and further stated testing of the spent cartridges

from the scene revealed all "were discharged" from defendant's "duty-issued

firearm." Gangi also testified as to General Order 18-22 promulgated by the

Newark Police Department, which "imposes [a] requirement that members

ensure that the use of division-authorized firearms do not pose a substantial risk

of injury to innocent persons." The grand jury returned an indictment charging

defendant with second-degree official misconduct and that defendant "being a

public servant, that is, a law enforcement officer . . . act[ed] with a purpose to

obtain a benefit for himself" and committed acts relating to his public office by

"utilizing his duty-issued firearm in an unauthorized manner during the

commission of and attempt to commit a crime(s)."

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The motion judge denied defendant's application and explained the

reasons for his decision in a comprehensive written statement of reasons. The

judge explained the "State has provided evidence that [defendant] was

representing himself as a police officer while allegedly perpetrating a crime ."

Specifically, defendant "was wearing his full police uniform, thereby

representing himself as a police officer, and discharging his duty -issued

firearm." The judge concluded "it is entirely reasonable that the grand jurors

may have inferred that these potential witnesses saw a police officer acting in

his capacity as an officer of the law," and acknowledged the State alleged

defendant used his duty-issued firearm "in the commission of the crimes in

violation of" General Order 18-22. He thus found, "viewing the evidence and

the rational inferences drawn from that evidence in the light most favorable to

the State, the [c]ourt finds that the State has submitted some evidence that

[d]efendant committed an act relating to his office knowing it was

unauthorized."

The judge ultimately found "the grand jury could reasonably infer based

on the evidence submitted by Detective Gangi that [d]efendant's actions were

connected to his official duties as a police officer," and "could reasonably infer

based on the evidence that [d]efendant's actions made calculated use of his office

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to avoid suspicion." The court thus found that "a prima facie case of [o]fficial

[m]isconduct has been established and the indictment is not palpably defective ."

A trial court's decision denying a defendant's motion to dismiss a count of

the indictment is reviewed for an abuse of discretion. State v. Saavedra, 222

N.J. 39, 55 (2015). "A trial court's exercise of this discretionary power will not

be disturbed on appeal unless it has been clearly abused." Id. at 55-56 (quoting

State v. Warmbrun, 277 N.J. Super. 51, 60 (App. Div. 1994)). Our Supreme

Court has "stressed that a court should dismiss an indictment 'only on the

clearest and plainest ground,' and only when the indictment is manifestly

deficient or palpably defective." State v. Twiggs, 233 N.J. 513, 531-32 (2018)

(quoting State v. Hogan, 144 N.J. 216, 228-29 (1996)).

A trial court deciding a motion to dismiss an indictment determines

"whether, viewing the evidence and the rational inferences drawn from that

evidence in the light most favorable to the State, a grand jury could reasonably

believe that a crime occurred and that the defendant committed it." State v.

Morrison, 188 N.J. 2, 13 (2006). A court "should not disturb an indictment if

there is some evidence establishing each element of the crime to make out a

prima facie case." Id. at 12.

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41
The indictment charged defendant with second-degree official misconduct

pursuant to N.J.S.A. 2C:30-2(a), which provides:

A public servant is guilty of official misconduct when,
with purpose to obtain a benefit for himself or another
or to injure or to deprive another of a benefit:

a. He commits an act relating to his office but
constituting an unauthorized exercise of his
official functions, knowing that such act is
unauthorized or he is committing such act in an
unauthorized manner . . . .

"[T]he crime of official misconduct has three elements: (1) the defendant is a

public servant, (2) who committed an act relating to his office, (3) with purpose

to benefit himself or deprive another of a benefit." State v. Bullock, 136 N.J.

149, 153 (1994). Only the second element is at issue here.

A "defendant's oath as a police officer to defend and obey the laws of New

Jersey, in of itself, does not make him strictly liable for official misconduct for

all crimes he may commit." State v. Kueny, 411 N.J. Super. 392, 405 (App. Div.

2010). Rather, "the misconduct must somehow relate to the wrongdoer's public

office." Id. at 407. "[A]n act 'sufficiently relates' to law enforcement officers'

public office when they 'commit an act of malfeasance because of the office they

hold or because of the opportunity afforded by that office . . . .'" Saavedra, 222

N.J. at 61 (quoting Bullock, 136 N.J. at 157) (second alteration in original).

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42
Our courts have also found official misconduct charges can be based on

conduct while off duty. See, e.g., State v. Johnson, 127 N.J. 458, 486-87 (1992)

(concluding an off-duty state trooper could be found to have committed official

misconduct when he donned his uniform and feigned a drug arrest to take the

drugs to resell); Bullock, 136 N.J. at 151-52 (finding a temporarily suspended

officer involved his office and was guilty of official misconduct when he

represented himself as a police officer while perpetrating a crime); Moore v.

Youth Corr. Inst., 119 N.J. 256, 270 (1990) (finding an off-duty corrections

officer who trespassed onto his supervisor's property to commit a harassing act

committed an act that "involved and touched" his employment). Our Supreme

Court in State v. Hinds noted that "[t]he acts of the off-duty officers in Johnson

and Bullock were sufficiently related to the officers' official status to constitute

official misconduct because they made calculated use of an office to avoid

suspicion and to instill in unsuspecting victims a false sense of security." 143

N.J. 540, 546 (1996).

Further, this court has found an off-duty officer acts in a manner "directly

involv[ing] and touch[ing] upon his employment" when he "display[s] his police

badge and use[s] his service revolver in the incident that formed the basis for

his aggravated assault conviction." State v. Williams, 355 N.J. Super. 579, 585

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43
(App. Div. 2002). The court found the defendant in Williams "was lawfully

carrying the weapon, whose unlawful use constituted a fourth-degree aggravated

assault, only by virtue of his employment as a police officer." Ibid. While

Williams involved the forfeiture-of-public-office statute rather than official

misconduct, that statute, while not identical to official misconduct, similarly

requires the public servant to be "convicted of an offense involving or touching

such office, position or employment." N.J.S.A. 2C:51-2(a)(2).

We are satisfied the motion judge did not abuse his discretion in denying

defendant's motion to dismiss the official misconduct charge. Gangi presented

evidence to the grand jury that defendant came to his former residence on July

14, 2019, dressed in his full police uniform, and discharged his duty-issued

weapon when he shot Christie and Simonson.

He further correctly informed the grand jurors that several neighbor

witnesses saw defendant tracking Christie to 3 and 5 Mirror Place wearing a

dark blue police uniform, and that many of these neighbors knew defendant was

a police officer. The grand jury could have reasonably believed these witnesses

may have heard gunshots and then seen defendant in his police uniform, without

a covering as was his custom upon completing his shift, and thought defendant

was acting in his official capacity. Furthermore, they could have reasonably

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44
believed from Gangi's testimony defendant used his police uniform to make

"calculated use of [his] office to avoid suspicion and to instill in unsuspecting

victims a false sense of security" from these witnesses. Hinds, 143 N.J. at 546.

On this point, we note Gangi stated defendant told Sole, who had heard the

gunshots and asked defendant what was going on, that he was just "doing busy

work," feigning innocence and providing Sole with a "false sense of security."

Hinds, 143 N.J. at 546.

We reject defendant's argument the grand jury "determined that the [S]tate

did not present sufficient evidence that [defendant] used his uniform in an

unauthorized manner, and returned the indictment only on the gun claim." The

record reflects the State presented its official misconduct charge to the grand

jury based on both defendant's use of his police uniform and duty-issued weapon

in an unauthorized manner. We discern nothing in the grand jury proceedings

to suggest they rejected any part of the State's theory.

Further, Gangi also presented evidence to the grand jury defendant used

his duty-issued weapon to kill Christie and injure Simonson. He further testified

as to General Order 18-22, which "imposes the requirement that [Newark police

officers] ensure that the use of division-authorized firearms do not pose a

substantial risk of injury to innocent persons." While off duty, defendant had

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45
the weapon he used to commit the charged crimes "only by virtue of his

employment as a police officer," Williams, 355 N.J. Super. at 585, and "because

of the opportunity afforded by" the Newark Police Department, Saavedra, 222

N.J. at 61, and he knowingly used it in an unauthorized manner when he shot

Christie and Simonson. Thus, as the motion judge correctly found, testimony

from the grand jury proceeding, when viewed in a light most favorable to the

State, supported the conclusion the State presented "some evidence" defendant

committed an act related to his public office as a police officer and that he knew

it was unauthorized. Morrison, 188 N.J. at 12. 4

IV.

In point three, defendant argues the motion court erred in failing to

suppress his statements to police, including when he told Kelly during the

roadside interaction that his gun was in the trunk of his car, those he made to

Kelly in transport to the Livingston police station, and statements he made in

4
Finally, we note a subsequent finding of guilt by a properly instructed jury
"represents a finding beyond a reasonable doubt that defendant[] w[as] guilty of
the offense." State v. Ball, 268 N.J. Super. 72, 120 (App. Div. 1993). Thus,
errors or "procedural irregularities in a grand jury proceeding are rendered
harmless where defendant is ultimately found guilty by petit jury." Warmbrun,
277 N.J. Super. at 60 (quoting Ball, 268 N.J. Super. at 120). Therefore, since
defendant does not challenge the jury verdict or charge of official misconduct,
we conclude any alleged errors which occurred at the grand jury proceedings are
rendered harmless.
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46
his formal interview with Puskas at the Jefferson Township police station. We

have considered all of these arguments and find them to be without merit.

Prior to trial, the State moved to admit defendant's statements made to

police and defendant moved to suppress them. Kelly and Puskas testified at the

suppression hearing.

Kelly testified he was advised on July 15, 2019, there was "a possible

homicide in Jefferson" and the suspect's "cell was getting pinged" in Livingston.

He testified he stopped a white Mazda, on July 15, 2019, near Heritage Middle

School. The car had a single occupant, who Kelly identified at the hearing as

defendant. Kelly stated after he conducted the stop, police removed defendant

from his car, conducted a pat-down search, handcuffed him, and placed him in

Kelly's car. Kelly recalled defendant was complaining about his handcuffs being

too tight, so he "removed him . . . out of the vehicle and adjusted them

accordingly." When he did that, Kelly "did a secondary search . . . for any

weapons, asked him if he had any weapons on him, and then [he] cuffed him,

double locked, and placed him into the back of [his] vehicle." Kelly indicated

he was aware at the time defendant was a Newark police officer, and he was

aware police officers typically carry a weapon as part of their uniform.

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47
The MVR recording from Kelly's car was played at the hearing. 5 At the

roadside stop, once officers had handcuffed defendant, an unidentified officer

stated, "[w]e're not going to go through [defendant's] car, apparently he says he's

got a weapon in the car." While adjusting defendant's handcuffs, and without

administering any Miranda warnings to defendant, Kelly asked defendant, "[d]id

you get off the job today?" Defendant replied, "[y]eah, I went home from work

and I came home and found my wife in bed with another guy." Kelly then asked

defendant, "Ok. Is the gun that you used in the car?" to which defendant replied,

"[i]t's in the trunk." Kelly testified officers searched defendant three times and

he had no weapons on him before he asked defendant about the whereabouts of

the gun. He stated he only asked defendant about the gun "for officer safety ."

Kelly did not recall that another officer had said defendant had indicated the gun

was in his car, but he nonetheless stated "[s]ome officers carry multiple weapons

or multiple handguns."

Before Kelly transported defendant to the Livingston police station, he

administered defendant Miranda warnings. Kelly indicated he advised

defendant of those rights "from memory." The MVR recording evidenced Kelly

telling defendant, "[a]ll right, so, you obviously know what happened so, you

5
We cite to the transcript of the MVR recording included in the appendix.
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48
have the right to remain silent, anything you say or do can be used against you

in a court of law. You have a right to an attorney[,] if you can't afford one, one

will be appointed to you." Kelly asked, "[d]o you understand your rights as they

have been read to you?" and defendant replied, "[m]m-hmm."

Kelly also testified at the hearing defendant made statements to him in

transport to the Livingston police station, as noted above. Specifically, Kelly

recalled defendant "asked if [Kelly] thought he was pitiful" and "said that he

saw his wife in bed with another man." Kelly stated he did not ask defendant

any questions in transport and "just responded to whatever he was either asking

or telling me." Of import, the MVR recording depicted defendant asking Kelly

if he thought he was "pitiful" and Kelly responded, "I don't. I just think you

need help." Defendant then told Kelly:

[Defendant]: I've been a cop for [twenty-four] years,
man.

[Kelly]: Yeah.

[Defendant]: Never

[Kelly]: Your boys are looking for you, man.

[Defendant]: I never shot anybody before. . . . I filed
for divorce like two weeks ago. My mother lives in
town.

[Kelly]: Yeah. . . .

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49
[Defendant]: Yeah. If you get a chance, just you know,
let her know . . . she'll worry.

[Kelly]: We will.

[Defendant]: I'd never hurt the kids, I can't believe
(unintel[ligible])

[Kelly]: Ok.

[Defendant]: It happened so fast.

[Kelly]: Yeah.

[Defendant]: Walked in, I had my uniform on, gun on,
you know . . . my daughter left her glasses in the car,
you know?

[Kelly]: Yeah.

[Defendant]: So I went out there to just return the
eyeglasses at the house, and right on, you know. Right
on my bed, man. Right, right in my bedroom.

[Kelly]: Yeah.

[Defendant]: Thanks for listening, bro. I appreciate it.

[Kelly]: Yeah, man.

Puskas also testified at the suppression hearing regarding defendant's

formal interview. Puskas testified he "was not aware of any statements"

defendant had made to police prior to interviewing him. Puskas indicated

defendant was not restrained in any way during the interview. He stated he

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50
advised defendant of his Miranda rights using a form from the prosecutor's

office. Puskas testified defendant circled "yes" and initialed each of the

questions on the form, including that he understood each of the rights explained

to him and that he wished to speak to police. Puskas stated they took a break

during the statement and defendant was given water and a blanket during the

interview. Puskas testified defendant's demeanor was "very quiet" and "almost

solemn" during the interview.

The first twenty-five minutes of defendant's interview with police were

played at the hearing and entered into evidence. In the interview, Puskas read

defendant his Miranda rights. He asked defendant, "[d]o you understand these

rights that I have . . . explained to you?" to which defendant responded, "[y]es"

and circled that on the Miranda form. After Puskas read defendant his Miranda

rights, he asked:

[Puskas]: Okay. Having these rights in mind, do you
wish to speak to us now?

[Defendant]: I want to, but it's not in my best interest.

[Puskas]: I'm sorry. Say it again.

[Defendant]: I want to, but it's probably not in my best
interest.

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51
[Puskas]: Well, you tell me what you want to do,
because you can, as I said to you, you can stop at any
time.

[Defendant]: I know that.

[Puskas]: Okay.

[Defendant]: I know. Okay.

[Puskas]: But as long as you understand. I know you've
done this before yourself.

[Defendant]: Yeah.

[Puskas]: So, uh, that I can't tell you what to do.

[Defendant]: I want to help but it, it was, it was crazy.

[Puskas]: I'm sorry.

[Defendant]: It was crazy. It was crazy.

[Puskas]: It was crazy, you said?

[Defendant]: It was crazy. I never even have been
involved in a domestic before, let alone this.

[Puskas]: Well, as I said, I, I will, I will talk to you.
You can stop at any time, if you desire to. Okay.

[Defendant]: Okay.

[Puskas]: And we'll just stop.

[Defendant]: Okay.

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52
[Puskas]: So again, are you willing to . . . talk with us
now?

[Defendant]: Okay.

[Puskas]: Okay. So just put yes here and your initials
next to that yes and next to the other yes. Okay. . . .
Could you print your name right there and then sign
right there.

[Defendant]: Okay.

The motion judge granted in part and denied in part defendant's motion.

Regarding the statements defendant made to Kelly during the roadside stop, the

judge found it was clear during that questioning defendant "was not free to

leave" since he had already been arrested and handcuffed and was thus in

custody. He also found when Kelly asked defendant whether he just got off

work and where the gun was, "his questions were reasonably likely to elicit an

incriminating response, as . . . Kelly knew [d]efendant was [a] Newark [p]olice

[o]fficer and a suspect in a murder investigation," and thus defendant "was

subject to custodial interrogation at the time he made statements" to Kelly during

the roadside interaction.

However, the judge found defendant's "statements regarding the

whereabouts of the weapon [were] still admissible under the public safety

exception to the Miranda requirements." He found when Kelly asked where the

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53
gun was, "the police officers were confronted with the necessity of ascertaining

the whereabouts of a dangerous weapon that they believed [d]efendant had

possessed earlier in the evening" and "[o]fficers suspected that [d]efendant used

the gun to fatally shoot his wife . . . and seriously wound [Simonson]."

The judge also concluded Kelly "testified that he asked the question for

officer safety reasons." Further, while the judge noted the MVR recording

detailed an unknown officer stating that defendant had said the gun was in his

car, "Kelly testified that some officers carry multiple weapons" and "several

hours had passed since the alleged shooting" when defendant was stopped by

police, and "[t]he location of the weapon that [d]efendant allegedly used was

unknown to . . . Kelly at that time, and to his knowledge, it could have been

accessible by [d]efendant and/or a member of the public." Under those

circumstances, the court found "there was an objectively reasonable need to

protect the police and the public from an immediate danger associated with the

weapon" and "[t]he limited questioning of [d]efendant was designed to secure

the safety of the police officers and the public, and . . . [d]efendant's response

only pertained to the whereabouts of the gun." Thus, the court found defendant's

statement the gun was in the trunk of his car was admissible.

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However, the court found "the question posed by . . . Kelly in regard to

whether [d]efendant 'got off the job' that day is not related to the danger

associated with a weapon, nor was it reasonably necessary to secure public

safety." The judge found that question and defendant's answer to it—that he

went home and found his wife in bed with another man—were inadmissible.

Further, the judge noted, although Kelly did advise defendant of his Miranda

rights before transporting him to the Livingston police station, he did not tell

defendant he could exercise his rights at any time and thus the Miranda warnings

administered by Kelly during the roadside interaction were insufficient.

Nonetheless, the court found "[d]efendant did not make any statements during

the roadside interaction after he was advised of his rights."

Regarding defendant's statements to Kelly in transport to the Livingston

police station, the judge also found defendant was "in custody" at that time,

"[h]owever, the proofs establish that the officers did not say anything to elicit

an incriminating response from [d]efendant or to place [d]efendant under

compulsion to speak." Rather, the judge found "[d]uring the transport, it was

[d]efendant himself that initiated a conversation with . . . Kelly ." Also, while

the judge found that Kelly "acknowledge[d] [d]efendant's statements," "his

responses were not 'reasonably likely to elicit an incriminating response .'" The

A-1624-22
55
judge therefore found those statements "are admissible as spontaneous

statements."

With respect to defendant's formal interview with Puskas, the judge found

"[a]t no point did [d]efendant indicate that he would not make a statement or

that he would like the questioning to stop" when he told Puskas he wanted to

talk but it was likely not in his best interest. The judge found that statement

from defendant was "equivocal," and Puskas properly clarified "whether the

suspect intended to invoke his right to remain silent" and "told [d]efendant to

tell him what he wanted to do and that he could stop the interview at any time ."

The judge also noted defendant said "[o]kay" when Puskas again asked him if

he wanted to speak to police and defendant circled "yes" on the Miranda form.

The court further found defendant "had twenty-four years of law

enforcement experience when he made the above-mentioned statements" and

"was familiar with his constitutional rights." Further, "the officers made efforts

to make [d]efendant comfortable by offering him water and a blanket at the

station." The judge found defendant was read each of his Miranda rights and

indicated he understood them and "further indicated in writing that he wished to

speak to . . . Puskas, having these rights in mind." The judge concluded "[t]here

is nothing in the record to suggest [d]efendant was forced, threatened, or coerced

A-1624-22
56
into making a statement at any time." He accordingly found "[d]efendant

knowingly, intelligently, and voluntarily waived his Miranda rights" and the first

twenty-five minutes and fifty-five seconds of defendant's formal interview with

police were admissible.

Appellate review of a decision on a motion to suppress is limited. State

v. Ahmad, 246 N.J. 592, 609 (2021). "Generally, on appellate review, a trial

court's factual findings in support of granting or denying a motion to suppress

must be upheld when 'those findings are supported by sufficient credible

evidence in the record.'" State v. A.M., 237 N.J. 384, 395 (2019) (quoting State

v. S.S., 229 N.J. 360, 374 (2017)). The appellate court gives deference to those

factual findings in recognition of the trial court's "opportunity to hear and see

the witnesses and to have the 'feel' of the case, which a reviewing court cannot

enjoy." State v. Elders, 192 N.J. 224, 244 (2007) (quoting State v. Johnson, 42

N.J. 146, 161 (1964)). The reviewing court "ordinarily will not disturb the trial

court's factual findings unless they are 'so clearly mistaken that the interests of

justice demand intervention and correction.'" State v. Goldsmith, 251 N.J. 384,

398 (2022) (quoting State v. Gamble, 218 N.J. 412, 425 (2014)). However, legal

conclusions to be drawn from those facts are reviewed de novo. State v. Radel,

249 N.J. 469, 493 (2022).

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57
The Fifth Amendment of the United States Constitution and New Jersey's

common, statutory, and evidentiary law provide a right against self-

incrimination. A.M., 237 N.J. at 396; see also N.J.R.E. 503; N.J.S.A. 2A:84A-

19. In Miranda, 384 U.S. at 467, the United States Supreme Court developed

certain safeguards to ensure a person subject to police interrogation understands

the right against self-incrimination and has a "meaningful opportunity" to

exercise it. State v. Nyhammer, 197 N.J. 383, 400 (2009). Pursuant to those

Miranda safeguards, individuals in custody must be warned prior to any

questioning that they have the right to remain silent, anything they say can be

used against them in a court of law, they have the right to the presence of an

attorney, and if they cannot afford an attorney, one will be appointed for them

prior to any questioning if they want an attorney. 384 U.S. at 479.

"The Miranda rule does not come into play unless a statement is the

product of custodial interrogation." State v. Elysee, 159 N.J. Super. 380, 387

(App. Div. 1978); Ahmad, 246 N.J. at 610. Whether an individual is in custody

for Miranda purposes "is a fact-sensitive inquiry" and "[t]he critical determinant

of custody is whether there has been a significant deprivation of the suspect's

freedom of action based on the objective circumstances, including the time and

place of the interrogation, the status of the interrogator, the status of the suspect,

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58
and other such factors." Ahmad, 246 N.J. at 611 (quoting State v. P.Z., 152 N.J.

86, 103 (1997)). "[T]he term 'interrogation' under Miranda refers not only to

express questioning, but also to any words or actions on the part of the police

(other than those normally attendant to arrest and custody) that the police should

know are reasonably likely to elicit an incriminating response from the suspect."

State v. Hubbard, 222 N.J. 249, 267 (2015) (alterations in original) (quoting

Rhode Island v. Innis, 446 U.S. 291, 301 (1980)).

A. Defendant's Statements During the Roadside Interaction

Defendant argues the judge erred in finding defendant's statement to Kelly

that his gun was in the trunk of his car was admissible under the public safety

exception. We are not persuaded.

"The public safety exception to the requirement of giving a Miranda

warning prior to interrogation was first recognized by the United States Supreme

Court in New York v. Quarles, [467 U.S. 649 (1984)]." State v. Melendez, 423

N.J. Super. 1, 23 (App. Div. 2011). "This exception allows police to question

an accused, prior to giving Miranda warnings, when there is a public safety

concern." Ibid. Our Supreme Court adopted the public safety exception in State

v. O'Neal, holding that the questioning of a suspect prior to the administration

of Miranda warnings was acceptable when the situation presented an

A-1624-22
59
"objectively reasonable need to protect the police or the public from any

immediate danger associated" with a weapon. 190 N.J. 601, 618 (2007) (quoting

Quarles, 467 U.S. at 659 n.8).

To establish the exception applies, the "State must generally demonstrate

(1) there was an objectively reasonable need to protect the police or the public;

(2) from an immediate danger; (3) associated with a weapon; and that (4) the

questions asked were related to that danger and reasonably necessary to secure

public safety." Melendez, 423 N.J. Super. at 24 (quoting State v. Stephenson,

350 N.J. Super. 517, 525 (App. Div. 2002)). "Application of the public safety

exception generally requires a concern for the protection of the public at large,

or an extended group of individuals, such as children." Ibid.

We are convinced the trial judge did not abuse his discretion in finding

defendant's statement about the whereabouts of the gun was admissible under

the public safety exception. As the judge found, defendant was handcuffed at

the time Kelly asked him about the gun, thus he was in custody for Miranda

purposes. Ahmad, 246 N.J. at 611. Further, asking defendant where the gun

was, which was suspected to be the murder weapon, was "reasonably likely to

elicit an incriminating response from the suspect," Hubbard, 222 N.J. 249, 267,

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thus he was also subject to interrogation. When he asked about the location of

the gun, Kelly had not administered any Miranda warnings to defendant.

The judge's finding the public safety exception applied is supported by the

record. A.M., 237 N.J. at 395. Before officers located defendant, they knew he

was a suspect in a homicide, and he had left the crime scene and had been driving

around. Once they found defendant, multiple searches of him did not reveal the

gun. Further, it is important to note defendant was stopped near a local middle

school, where the gun could have been found by a child or any other member of

the public if it had been discarded there. Kelly did not know where the gun was

when he questioned defendant, thus, the gun could have been accessible by

defendant or another member of the public and gave rise to "a concern for the

protection of the public at large." Melendez, 423 N.J. Super. at 24. These

circumstances presented the police with an "objectively reasonable need to

protect the police or the public from any immediate danger associated" with a

weapon. O'Neal, 190 N.J. at 618.

While defendant contends another officer stated defendant told the police

the gun was in his trunk, as Kelly testified, officers sometimes carry multiple

weapons, and the judge credited that testimony and explanation. On this point,

it is significant to note Kelly ultimately did not know the whereabouts of the

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61
gun when he questioned defendant, and the record supports the notion he asked

about the gun to preserve officer and public safety, as he testified. Moreover,

Kelly's question was solely related to the location of the gun "to secure public

safety," not designed to elicit further incriminating responses from defendant

about other topics. Melendez, 423 N.J. Super. at 24; see State ex rel. A.S., 227

N.J. Super. 541, 543, 548 (App. Div. 1988) (applying the public safety exception

where police asked an unwarned suspect about a gun's location after he was seen

firing it in a residential neighborhood and a pat-down did not reveal the gun and

when the questioning and responses by the defendant "pertained only to the

whereabouts of the gun"). As further support for our conclusion the court

correctly applied the public safety exception, we note the judge properly

suppressed defendant's comment to Kelly he "went home from work and [he]

came home and found [his] wife in bed with another guy" as not related to public

safety, or any other exception, and made without being administered proper

Miranda warnings.

Defendant's reliance on Stephenson is misplaced as that case is factually

distinguishable. The officers in Stephenson did not know if the defendant even

possessed a gun at all. 350 N.J. Super at 524. Here, the officers knew defendant

had a gun and had used it earlier in the night to commit a potential homicide.

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Further, while the gun ended up being in the trunk in a private location, the

police at first did not have any idea where the gun was, particularly when their

multiple searches of defendant failed to reveal any weapons. Further, defendant

admitted he had been driving around after the shootings and could have

discarded the weapon anywhere for a member of the public to potentially find.

Finally, as noted, Kelly's question was narrowly tailored to locating the weapon.

Moreover, defendant failed to establish how his statement that the gun was

in his trunk prejudiced him at trial or how it could have produced a different

result. Even if his statement was suppressed, Bost later secured defendant's car

and Goncalves searched it, including the trunk where the gun was found. Thus,

even without the admission, the police would have located the gun and

conducted testing on the shell casings and bullet fragments found from the scene

that matched defendant's Sig Sauer P229.

B. Defendant's Statements in Transport

Defendant next argues his statements made to Kelly while in transport to

the Livingston police station should have been suppressed because they were

"improperly elicited through interrogation while he was in custody." We are

unconvinced.

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Our courts have found that statements made, even when a defendant is in

custody, that are "unsolicited, spontaneous, and not made in response to

'questioning or its functional equivalent'" are "not violative of Miranda." State

v. Beckler, 366 N.J. Super. 16, 25-26 (App. Div. 2004) (quoting State v. Ward,

240 N.J. Super. 412, 418 (App. Div. 1990)). "In the absence of interrogation, a

volunteered or spontaneous remark by a suspect is admissible in evidence

regardless of the absence of Miranda warnings." Elysee, 159 N.J. Super. at 387;

see also State v. Tiwana, 256 N.J. 33, 45-46 (2023); Ward, 240 N.J. Super. at

419.

The court found defendant's statements made while in transport were

admissible because they were spontaneous, and defendant initiated the

conversation with Kelly. Those findings are supported by credible evidence in

the record. A.M., 237 N.J. at 395. At the outset, while Kelly administered

defendant verbal Miranda warnings before transporting him to the Livingston

police station, the judge found those warnings were incomplete and thus

insufficient. Further, as the judge found, because defendant was handcuffed and

in route to the police station, there "ha[d] been a significant deprivation of the

suspect's freedom of action" and defendant was in custody for Miranda purposes.

Ahmad, 246 N.J. at 611.

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The transcript makes clear, however, it was defendant who initiated the

conversation with Kelly and gave a series of "volunteered or spontaneous

remark[s]" that were not the result of interrogation or its functional equivalent.

Elysee, 159 N.J. Super. at 387. Indeed, defendant, not Kelly, initiated the

conversation by telling Kelly he was going to commit suicide. Kelly's response

advising defendant not to do so and that he would get him help is not something

he "should [have] know[n]" would be "reasonably likely to elicit an

incriminating response" about the circumstances of the alleged homicide.

Hubbard, 222 N.J. at 267.

Even when defendant told Kelly he had "never shot anybody before,"

Kelly responded, "[y]eah" and continued to respond "[y]eah" or "[o]k" when

defendant offered more details about the crime, all of which were unprompted

by Kelly. Kelly's superficial responses also were not "reasonably likely to elicit

an incriminating response from [defendant]." Ibid. Like in Innis, "the entire

conversation" between defendant and Kelly "appears to have consisted of no

more than a few offhand remarks" and the MVR recording does not depict that

any of Kelly's comments "were particularly 'evocative'" such that Kelly "should

have known" any of his comments were reasonably likely to elicit an

incriminating response. 446 U.S. at 301-02.

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65
We therefore reject defendant's contention Kelly "initiated and maintained

an ongoing dialogue" with defendant to elicit incriminating responses from him,

as belied by the audio of the MVR recording. In that recording, it is clear

defendant is the one who consistently initiates conversation with Kelly, and

there are significant pauses between defendant offering more information,

depicting the spontaneity and voluntariness of his statements to Kelly. Kelly

does not initiate the conversation at any point in transporting defendant to the

Livingston police station, despite defendant's arguments to the contrary. See

State v. Cryan, 363 N.J. Super. 442, 453-54 (App. Div. 2003) (finding

defendant's "unsolicited" incriminating statements made without Miranda

warnings while in police custody were admissible when "defendant himself

initiated each and every encounter with the police" and in those situations a

defendant "has only himself to blame").

The MVR recording establishes Kelly did not subject defendant to

"questioning or its functional equivalent," Beckler, 366 N.J. Super. at 25-26,

which was made clear when defendant stated at the end of the transport,

"[t]hanks for listening, bro. I appreciate it." That statement demonstrates

defendant was the one giving unsolicited statements and Kelly was simply

listening and not subjecting defendant to an interrogative technique designed to

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66
elicit an incriminating response. As the judge found, defendant's remarks in

transport were "unsolicited, spontaneous, and not made in response to

'questioning or its functional equivalent'" and thus were "not violative of

Miranda." Ibid. (quoting Ward, 240 N.J. Super. at 418).

C. Defendant's Formal Interview

Defendant also maintains his statements in his formal interview with

Puskas should have been suppressed because "they were the result of the two -

step question-first, warn-later interrogation process." We again disagree.

Upon being advised of one's Miranda rights, a person can waive those

rights, but the waiver must be "knowing, intelligent, and voluntary in light of all

the circumstances" and, under New Jersey law, the prosecutor must prove those

characteristics beyond a reasonable doubt. State v. Presha, 163 N.J. 304, 313

(2000); see also State v. Tillery, 238 N.J. 293, 315 (2019). To determine

"whether the waiver of rights was the product of a free will or police coercion,"

a court considers "the totality of the circumstances." Nyhammer, 197 N.J. at

402. Factors under that test include: "suspect's age, education and intelligence,

advice concerning constitutional rights, length of detention, whether the

questioning was repeated and prolonged in nature, and whether physical

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punishment and mental exhaustion were involved." State v. Galloway, 133 N.J.

631, 654 (1993); see also State v. Hreha, 217 N.J. 368, 383 (2014).

The motion judge found defendant knowingly, intelligently, and

voluntarily waived his Miranda rights prior to speaking to police at his formal

interview at the Jefferson Township police station, and thus the statements he

made during the interview were admissible. Those findings are fully supported

by credible evidence in the record and are unassailable. A.M., 237 N.J. at 395.

As the judge found, Puskas read defendant each of his Miranda rights

along with him using a Miranda form from the prosecutor's office, and defendant

stated he understood. When asked if he wished to speak to police, defendant

said, "I want to, but it's not in my best interest." That response was ambiguous

at best. To that end, Puskas immediately clarified and told defendant he could

not tell him what to do and he could stop talking to police at any time. See State

v. Johnson, 120 N.J. 263, 283 (1990) (noting that if an invocation of the right to

remain silent is ambiguous, the police "may ask questions designed to clarify

whether the suspect intended to invoke his right to remain silent"). Defendant

acknowledged he "kn[e]w that" and said he "want[ed] to help."

Puskas again told defendant he could stop at any time and again asked

defendant whether he wanted to talk to police, to which he said, "[o]kay" and

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then signed and initialed the Miranda form to waive his rights. As the judge

found, there is nothing to indicate defendant did not want to talk to police, and

he never stated as much. Puskas properly clarified and confirmed with

defendant he could stop talking to them at any time and asked a second time

whether defendant wanted to speak to police and defendant responded

affirmatively. He signed and initialed the Miranda waiver form confirming he

wanted to speak to police.

Further, as the judge also noted, defendant had been a police officer for

twenty-four years, knew about his constitutional rights, and confirmed with

Puskas he had administered Miranda warnings and conducted interviews

himself. Being a police officer with more knowledge of his constitutional rights

than other suspects, if defendant wanted to refuse to speak to police, he would

have said so directly. Defendant had also been given water and a blanket during

the interview, and there was no physical punishment or mental exhaustion

involved. The totality of all these circumstances supports the conclusion

defendant's waiver "was the product of a free will," Nyhammer, 197 N.J. at 402,

and was ultimately "knowing, intelligent, and voluntary," Presha, 163 N.J. at

313.

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Defendant also argues his statements during his formal interview should

have been suppressed because they were a result of a "question-first, warn-later"

interrogation in violation of State v. O'Neill, 193 N.J. 148 (2007). In O'Neill,

the police questioned the unwarned defendant until he admitted to conspiring to

rob a victim who was murdered. Id. at 156. After the admission, police read

him his Miranda rights and resumed the interrogation without a break and

without advising him his prior admission could not be used against him. Id. at

156-57. The police then had the defendant give a taped statement, which they

began by "cueing [the defendant] to his earlier unwarned interrogation." Id. at

157. The police further questioned the defendant in the holding cell after the

first taped statement and later obtained a second taped statement. Id. at 158-59.

Our Supreme Court held "when Miranda warnings are given after a

custodial interrogation has already produced incriminating statements, the

admissibility of post-warning statements will turn on whether the warnings

functioned effectively in providing the defendant the ability to exercise his state

law privilege against self-incrimination." Id. at 180-81 (emphasis in original).

In making this determination, the Court set forth the following five factors to

consider:

(1) the extent of questioning and the nature of any
admissions made by defendant before being informed

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of his Miranda rights; (2) the proximity in time and
place between the pre- and post-warning questioning;
(3) whether the same law enforcement officers
conducted both the unwarned and warned
interrogations; (4) whether the officers informed
defendant that his pre-warning statements could not be
used against him; and (5) the degree to which the post-
warning questioning is a continuation of the pre-
warning questioning.

[Id. at 181.]

"Under that formula . . . great weight should be given if the police informed a

suspect that his admissions made prior to being given the Miranda warnings

could not be used against him." Ibid. However, "the failure to give that

instruction will not automatically render the defendant's post-Miranda

statements inadmissible," and the Court made clear "that we are not pronouncing

a bright-line rule." Ibid.

Defendant argues all five factors weigh in favor of suppression and he did

not offer any information about the shootings until police questioned him. We

disagree and conclude the O'Neill factors weigh in favor of admitting the

statements.

First, in terms of the questioning before being administered Miranda

warnings, Kelly only questioned defendant about the whereabouts of the gun,

which was permissible under the public safety exception. The remainder of

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defendant's statements were not made in response to interrogation but were

voluntary.

Second, several hours passed between Kelly's questioning at the roadside

interaction and in transport and the formal interview with Puskas. Kelly stopped

defendant's car around 1:30 a.m. and brought him to the Livingston police

station, while Puskas formally interviewed defendant at the Jefferson Township

police station around 5:22 a.m.

Third, two different officers conducted the questioning, and there is no

evidence in the transcript of defendant's formal interview Puskas was even

aware of Kelly's questioning of defendant, and Puskas did not reference any of

Kelly's questioning during the formal interview. In fact, Puskas testified at the

suppression hearing he "was not aware of any statements" defendant had made

before he interviewed him. He further testified at trial, before interviewing

defendant, "all [he] knew was that somebody had been placed in custody in

Livingston" "and that he was being transported to Jefferson." In that sense, as

to the fifth factor, defendant's formal interview was not a continuation of Kelly's

questioning, but was set forth anew, as there was no evidence Puskas knew

defendant had made statements to Kelly.

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Defendant bases his argument primarily on the fourth O'Neill factor,

contending his formal interview was improper because he was never told the

statements he made to Kelly could not be used against him. We remain

unconvinced. Again, Puskas testified he was unaware defendant had made any

statements to Kelly before the formal interview, so he could not have given

defendant this warning. More importantly, as the O'Neill Court stated, that

omission alone "will not automatically render the defendant's post-Miranda

statements inadmissible." Id. at 181. Here, Puskas gave defendant his Miranda

warnings before the formal interview and the totality of the circumstances

indicates, as detailed above, those "warnings functioned effectively in providing

the defendant the ability to exercise his state law privilege against self-

incrimination." Id. at 180-81.

Moreover, even if we were to indulge defendant's contentions his

statements should have been suppressed, any error was clearly harmless beyond

a reasonable doubt. See Tillery, 238 N.J. at 302 (noting a Miranda violation

may constitute harmless error); Chapman v. California, 386 U.S. 18, 24 (1967)

(expounding the "harmless beyond a reasonable doubt" standard for cases

implicating constitutional error); State v. Maltese, 222 N.J. 525, 550 (2015)

(applying the "harmless beyond a reasonable doubt" standard to the defendant's

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assertion that police officers violated his Miranda rights in his interrogation).

Defendant argues he admitted his motive and that he committed the offenses in

his statements to police. Yet, even if all of defendant's statements were

suppressed, the State presented independent evidence of those same

circumstances clearly establishing defendant's guilt beyond any reasonable

doubt.

By way of example only, the State presented Simonson who testified he

had been dating Christie and the two were romantically involved on July 14,

2019, and text messages showing defendant did not want Christie to bring men

to the house, providing defendant's motive. The State also presented multiple

eyewitnesses who testified they saw defendant tracking Christie to 5 Mirror

Place, where she died. Nancy said she saw defendant had a gun in his hand and

shot it, and then he looked up at her and shot the gun several more times. Sole

testified he saw defendant running across his lawn from the direction of 5 Mirror

Place back toward the direction 1 Mirror Place after he had heard gunshots.

Video surveillance from Sole's house showed defendant crossing Sole's property

at 3 Mirror Place to follow Christie and eventually shoot her at 5 Mirror Place.

Ballistics evidence confirmed all the shell casings and bullet fragments from 1

Mirror Place and 5 Mirror Place came from a Sig Sauer P229 gun, the same

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model found in defendant's trunk. Thus, even without defendant's statements,

the State presented a wealth of evidence pointing to defendant's guilt of the

crimes charged. See Tillery, 238 N.J. at 319-20 (finding harmless any error in

the admission of the defendant's statement to police because the evidence of

defendant's guilt "was overwhelming").

V.

In his fourth point, defendant argues his convictions "must be reversed"

because the case was investigated and prosecuted by the Morris County

Prosecutor in violation of N.J.S.A. 52:17B-107(a)(2) and Attorney General Law

Enforcement Directive No. 2019-4. As defendant failed to raise this argument

below, despite numerous opportunities to so, we decline to address the issue as

it does not "go to the jurisdiction of the trial court or concern matters of great

public interest." State v. Robinson, 200 N.J. 1, 20 (2009) (quoting Nieder v.

Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973)); see also State v. Souss, 65 N.J.

453, 460 (1974) (noting when defendant's argument was not "alluded to, much

less squarely presented, in the courts below" it "need be given no consideration

here"); Pressler & Verniero, Current N.J. Court Rules, cmt. 3 on R. 2:6-2 (2024)

("Issues not raised below, even constitutional issues, will ordinarily not be

considered on appeal unless they are jurisdictional in nature or substantially

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implicate public interest."). Here, not only did defendant fail to address the

issue at any time during the approximately three years the matter was pending,

he also fails to cite any precedential authority to support the proposition the

State's alleged failure to comply with N.J.S.A. 52:17B-107(a)(2) and Attorney

General Law Enforcement Directive No. 2019-4 warrants reversal of his

convictions.

We agree with the State the "purpose of th[e d]irective is to outline clear

procedures governing such investigations [where law enforcement uses force

against civilians] and to ensure that they are done fully, fairly, and independently

of any potential bias." There is absolutely nothing in the record to indicate there

was any bias in the prosecution, investigation, or adjudication of defendant's

case, nor, as noted, did defendant ever argue so at any time in the trial court.

Moreover, defendant was neither indicted nor tried in Essex County where

he worked as a Newark police officer but instead prosecuted in Morris County.

Equally as important, nothing in the record remotely supports the conclusion

that defendant's indictment and prosecution by the Morris County Prosecutor,

rather than the Attorney General, was in any way unfair or would have produced

a different result. Defendant was afforded all the process he was due, and was

convicted by a jury who considered overwhelming evidence of his guilt for the

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murder of Christie, the attempted murder of Simonson, official misconduct, the

endangering charges with respect to each of his children, and hindering

apprehension or prosecution.

Affirmed.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10833114. Public record. Not legal advice.