STATE OF NEW JERSEY VS. GORDON FULLER (11-11-0133, MORRIS COUNTY AND STATEWIDE) ( 2019 )

NOT FOR PUBLICATION WITHOUT THE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-2121-17T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
GORDON FULLER,
Defendant-Appellant.
_________________________
Argued May 22, 2019 – Decided June 12, 2019
Before Judges Alvarez and Reisner.
On appeal from Superior Court of New Jersey, Law
Division, Morris County, Summons No. 11-11-0133.
Alan L. Zegas argued the cause for appellant (Law
Offices of Alan L. Zegas, attorneys; Alan L. Zegas and
Joshua M. Nahum, on the briefs).
Valeria Dominguez, Deputy Attorney General, argued
the cause for respondent (Gurbir S. Grewal, Attorney
General, attorney; Valeria Dominguez, of counsel and
on the brief).
PER CURIAM
Gordon Fuller filed an appeal from his conviction for second-degree
insurance fraud, N.J.S.A. 2C:21-4.6(b) and 2C:2-6(a), and related offenses. On
the appeal, his attorney raises the following issues:
I. THE TRIAL COURT ERRED BY FAILING TO
GRANT A NEW TRIAL BECAUSE THE JURY
VERDICT WAS AGAINST THE WEIGHT OF THE
EVIDENCE.
II. THE TRIAL COURT ERRED BY
PERMITTING INADMISSIBLE HEARSAY
TESTIMONY REGARDING THE IMPETUS FOR
THE CRIMINAL INVESTIGATION.
III. THE TRIAL COURT ERRED BY
PERMITTING DETECTIVE BEHAR TO TESTIFY
TO THE ULTIMATE CONCLUSIONS IN THE
CASE.
IV. THE TRIAL COURT ERRED BY ALLOWING
INTO EVIDENCE TESTIMONY REGARDING A
PARALLEL STATE INVESTIGATION
PREJUDICIAL TO MR. FULLER.
We dismiss the appeal as moot because defendant died while the appeal
was pending, and none of the issues presented on appeal are novel, present an
important public interest issue, or involve trial errors that cut mortally into
defendant's right to a fair trial.
In State v. Gartland, the Supreme Court emphasized that "[t]he power to
entertain a criminal appeal even after death should be sparingly exercised." 149
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N.J. 456, 465 (1997). However, "[o]ur courts will entertain a case that has
become moot when the issue is of significant public importance and is likely to
recur." Id. at 464.
In Gartland, the defendant was a victim of domestic violence and was
convicted of reckless manslaughter after killing her abuser in alleged self -
defense. Id. at 460-62. Recognizing the Legislature's commitment to eradicate
domestic violence and gun violence, the Court reasoned that "[t]o the extent that
this decision addresses concerns in this area, it is worth the judicial effort. " Id.
at 465. In other words, the case involved novel issues of public importance and,
therefore, the appeal warranted consideration although the defendant had passed
away. The Court also indicated that where a defendant has passed away pending
appeal, a conviction should not be overturned unless there was "a fundamental
miscarriage of justice" in the form of trial errors so fundamental that they "cut
mortally" into a defendant's right to a fair trial. Ibid.In this case, defendant's appeal raises no novel legal issue or any other
issue of significant public importance. Moreover, having reviewed the trial
transcripts to be sure that there were no such issues, we found no miscarriage of
justice in the conviction. There were no trial errors that would warrant reversing
defendant's conviction because they cut mortally into his right to a fair trial. To
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the contrary, based on our review of the record, the evidentiary issues defendant
raises are without merit, and the conviction was not against the weight of the
evidence.
As an intermediate appellate court, we are bound to follow Gartland and
have no authority to "reconsider" the case, as defendant urges we should do.
Nor can we accept defendant's invitation to follow the "American rule,"
requiring vacation of a deceased appellant's conviction, an approach Gartland
implicitly rejected. See id. at 464-66. Accordingly, we dismiss the appeal.
Dismissed.
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