STATE OF NEW JERSEY VS. OWEN R. HARSHANEY (13-07-0387, SOMERSET COUNTY AND STATEWIDE) ( 2018 )

NOT FOR PUBLICATION WITHOUT THE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-4223-15T2
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
OWEN R. HARSHANEY,
Defendant-Appellant.
______________________________
Submitted April 24, 2018 – Decided August 6, 2018
Before Judges Reisner, Hoffman, and Gilson.
On appeal from Superior Court of New Jersey,
Law Division, Somerset County, Indictment No.
13-07-0387.
Joseph E. Krakora, Public Defender, attorney
for appellant (Margaret R. McLane, Assistant
Deputy Public Defender, of counsel and on the
briefs).
Michael H. Robertson, Somerset County
Prosecutor, attorney for respondent (Paul H.
Heinzel, Assistant Prosecutor, of counsel and
on the brief).
PER CURIAM
In connection with a fire set at his former girlfriend's
home, defendant Owen Harshaney was indicted on three counts of
first-degree attempted murder, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:11-
3, and three counts of second-degree aggravated arson, N.J.S.A.
2C:17-1(a)(1). A jury acquitted defendant of attempted murder and
second-degree arson, but convicted him of three counts of third-
degree arson, N.J.S.A. 2C:17-1(b)(1). The trial court sentenced
defendant to five years in prison for each count, but ordered that
the sentences be served concurrently.
On this appeal, defendant challenges the conviction and the
sentence. He presents the following points of argument:
POINT I: THE POLICE DETECTIVE'S TESTIMONY
ABOUT OBTAINING A WARRANT AND EXPLAINING WHY
HE DID NOT SPEAK TO DEFENDANT BEFORE HIS
ARREST WAS HIGHLY PREJUDICIAL AND VIOLATED
DEFENDANT'S RIGHT TO DUE PROCESS. (Not Raised
Below)
POINT II: BECAUSE ONLY ONE FIRE WAS SET,
MERGER IS REQUIRED.
POINT III: THE STATUTORY MAXIMUM SENTENCE FOR
THIS THIRD-DEGREE CRIME IS MANIFESTLY
EXCESSIVE.
Based on State v. Cain, 224 N.J. 410 (2016), which was decided
after the trial in this case took place, we conclude that
defendant's conviction must be reversed and the matter remanded
for retrial. In particular, a police witness's repeated references
to the State obtaining "warrants" based on "probable cause" and
other similar prejudicial testimony - plus the absence of any
2 A-4223-15T2
curative instruction - amounted to plain error. R. 2:10-2; Cain,
224 N.J. at 414.1
I
To illustrate our legal conclusions, it is necessary to review
the evidentiary record in some detail. The State presented
undisputed evidence that the fire, which occurred on March 22,
2013, at a house on Brandywine Rise in Green Brook, was the result
of arson. Although the ex-girlfriend, M.M.,2 was not at home at
the time of the fire, testimony from three of her family members,
who were at home, established that they were asleep at about 4:00
a.m. and woke up to find that the house was on fire. Testimony
from forensic witnesses established that the fire was
intentionally set, by pouring gasoline next to the exterior of the
house and igniting it. The fire was set on the west side of the
house, where M.M.'s bedroom was located. All three family members
were able to escape from the burning house.
1
As noted later in this opinion, while we vacate the conviction
and sentence, we reinstate the "no-contact" condition under which
defendant was originally released pending trial in this case.
Defendant's pending motion, seeking permission to file a
supplemental brief addressing the imposition of a permanent no-
contact order, is denied as moot.
2
We use initials and first names to protect the privacy of M.M.
and her family.
3 A-4223-15T2
The central issue in the case was whether defendant set the
fire. Defendant's family lived in Dunellen, a mile or two from
M.M.'s home in Green Brook. M.M. and defendant had a dating
relationship for several years while they were in high school.
Defendant was also friendly with M.M.'s family. According to
M.M.'s father, defendant used to plow the M. family's driveway
during the winter.
M.M. testified that at the end of their senior year of high
school, she told defendant that she wanted to end their
relationship. He wanted to continue the relationship, however,
and she continued to see him sporadically during their freshman
and sophomore years of college. M.M. attended Rutgers University
in New Brunswick, while defendant attended Rutgers Newark. She
would occasionally drive to Newark to visit him.
At some point during their sophomore year of college, M.M.
broke off the relationship and blocked defendant's calls on her
cell phone. However, during their junior year in college, M.M.
received a text message from defendant and realized that his cell
number was no longer blocked. She admitted that his message was
innocuous, and she took no action to block his number again. She
initially testified that she did not hear from defendant again
until March 2013, when she was a senior in college.
4 A-4223-15T2
That contact, which sparked the events surrounding this case,
occurred after midnight on March 22, 2013. At that time, M.M. was
at a bar in Freehold with her current boyfriend, Ralph, and two
of their friends, Dan and James. At about 12:45 a.m., M.M.
received a text message from defendant. M.M.'s friends reacted
to the text with extreme disapproval, after she told Ralph that
she did not want to hear from defendant. Unprompted, Dan took
M.M.'s cell phone, and started sending defendant text messages,
telling him to leave Ralph's girlfriend alone and threatening to
come up to Newark and fight him. Then James texted defendant his
cell number and told defendant to call him. M.M. overheard her
friends and defendant yelling at each other over James's cell
phone, and threatening to kill each other. Ultimately, against
M.M.'s wishes, she and her three companions drove to Newark in
Dan's truck. However, according to M.M., when they reached Newark,
she became very upset and succeeded in convincing the men to leave
Newark without confronting defendant.
On cross-examination, M.M. admitted that, as recently as
January 10, 2013, defendant had text messaged her with an offer
to plow the driveway of her family's home after a snow storm. She
responded by thanking him but stating that it was not a priority.
She conceded that at that point, there was no animosity between
5 A-4223-15T2
them, and the text was not unwelcome. M.M. admitted that she also
occasionally encountered defendant at Rutgers football games.
M.M. further acknowledged that defendant's initial text
message to her on March 22, 2013 was "kind of . . . innocent."
However, Dan's response, which he typed on her cell phone, was a
string of hostile comments, threats, and obscenities. In his
responding text message, defendant stated, "I don't know what I
did . . . I don't know what you're talking about." M.M. was unable
to explain how her companions knew that defendant lived in Newark
or what his address was. She also could not recall if she saw
defendant in Newark, before her group decided to leave Newark.
According to Ralph's testimony, when M.M. received the text
message on March 22, she seemed annoyed and told her companions
that the person who sent it would not "leave her alone." At that
point, Dan took it on himself to send a series of text messages,
telling defendant that he knew where defendant lived and ordering
him to leave M.M. alone. Their friend James then sent defendant
a text message with James's phone number, telling defendant to
call him. This triggered a series of hostile phone conversations,
during which defendant exchanged threats with Ralph and James.
Ralph could not explain why the group decided to go to Newark in
search of defendant. He stated that they had not really thought
it through. On cross-examination, he conceded that M.M. told her
6 A-4223-15T2
companions where defendant lived, knowing that they intended to
go to Newark to pick a fight with defendant. Like M.M., Ralph
denied seeing any police cars in Newark, and testified that the
group left Newark at M.M.'s insistence.
In his testimony, Dan explained that their friend James was
a very emotional person, who was "screaming violently" during his
phone conversations with defendant. Dan testified that when the
group reached Newark, he had a cell phone conversation with a
second person, who was with defendant. This person was calm and
asked Dan to help him end the conflict. At that point, Dan decided
to end the incident and leave Newark with his companions. On
cross-examination, Dan conceded that the calm person on the phone
sounded like a police officer, which influenced his decision that
the group should leave Newark. According to Dan, there were no
further phone calls or text message exchanges with defendant during
the ride home.
James testified that he had a series of hostile phone
conversations with defendant, in which each of them made threats
to "fight" and "kill" the other. He explained that he and his
male companions went to Newark intending to fight defendant.
According to James, defendant told James what street he lived on,
and invited James and his group to come up and fight with defendant
and his group. James testified that between 2:00 a.m. and 3:00
7 A-4223-15T2
a.m., he received a call from a much calmer person, who also spoke
to Dan and convinced Dan that the group should go home. James
testified that his cell phone received a call from defendant's
phone number at 2:59 a.m., which James did not pick up, and another
at 4:30 a.m., which he missed because by then he was at home,
asleep.
Defendant's friend Timothy testified that a few minutes after
2:00 a.m. on March 22, 2013, defendant called Timothy to express
concern that "his ex-girlfriend's new boyfriend" might be looking
for him, intending to get into a fight. Like defendant, Timothy
was from Dunellen. However, he was temporarily living in Bayonne.
Defendant asked Timothy to come to his Newark apartment from
Bayonne to help him. When Timothy arrived, fifteen or twenty
minutes later, defendant pulled up in a large black pickup truck
and parked near him. Defendant was calm but upset about the
possibility of a fight. Shortly after Timothy arrived, a Rutgers
University police officer drove up, and defendant walked over to
speak with him. As defendant was talking to the officer, a white
truck entered the street and approached them from about fifty
yards away. Defendant appeared to recognize the truck and pointed
it out to the officer. According to Timothy, at that point, the
white truck turned down a side street, and the police officer
8 A-4223-15T2
drove off in pursuit. Defendant and Timothy got into defendant's
truck and started following the police car.
During the ride, Timothy heard defendant talking to someone
on his cell phone about having a fight. Timothy testified that
he did not want to be involved in a fight. Using defendant's cell
phone, he had two cell phone conversations with one of the people
defendant had been talking to; Timothy encouraged that person and
his companions to "just go home." Timothy testified that those
conversations were "calm." He and the other person agreed that
"it's late, this is dumb, nothing good can come of fighting" and
agreed that they would all go home.
According to Timothy, at that point, defendant was "[a]cting
pretty calm." When they returned to Halsey Street, where
defendant's apartment was located, Timothy offered to drive
defendant back to Dunellen. Defendant told Timothy that he wanted
to retrieve a TV stand from his Newark apartment, but he first
needed to drive back to his family's home in Dunellen because he
left his apartment key there.3 Timothy drove back to Bayonne, but
called defendant to make sure he got home to Dunellen safely. He
also testified that at about 4:20 a.m., defendant's parents called
3
M.M. testified that March 22, 2013 was during the Rutgers
University spring break.
9 A-4223-15T2
him, using defendant's cell phone. Timothy identified a photo of
the black truck defendant was driving that night.
Despite the nasty phone calls and text messages between
defendant and M.M.'s male companions, the State did not produce
any evidence that defendant made any threats against M.M. or that
he was angry with her.
A couple of days after the fire, the police recovered security
videos from a drug store and a car repair business in the area of
M.M.'s home in Green Brook. The drugstore video showed a dark
pick-up truck entering Route 22 West, about a half mile from M.M.'s
neighborhood, at 3:54 a.m. The car repair video showed the same
pick-up truck exiting Route 22 West at 3:57 a.m. and turning onto
Cramer Avenue, a side street leading to Brandywine Rise. At 4:03
a.m., the video showed the same truck emerging from the
neighborhood, "traveling towards [Route] 22, with its lights off."
Near the intersection with Cramer Avenue and Route 22, the truck's
headlights went on and the truck turned onto westbound Route 22.
The video also showed the police arriving from Route 22 westbound,
at 4:07 a.m. The officer who testified about the video admitted
that the most direct route from Brandywine Rise to defendant's
family's home in Dunellen was to go east on Route 22, not west.
Captain Schutta testified about his investigation of the
fire. He confirmed that defendant was issued a ticket, after a
10 A-4223-15T2
red light camera showed his black pick-up truck going through a
red light in Newark on March 22, 2013, at 3:17 a.m. He also
testified that he obtained a communications data warrant for a
certain cell phone number (later confirmed as defendant's cell
phone), after learning that M.M. had received "annoying or
bothersome texts" from defendant. He explained that a judge had
issued the warrant after reviewing an "affidavit" and an
application. Schutta also confirmed that "by way of a Grand Jury
subpoena" he obtained defendant's bank records and determined that
defendant paid the ticket. The red light video showed defendant's
black pick-up truck. Prompted by the prosecutor, Schutta then
testified that he obtained "an arrest warrant for [d]efendant for
aggravated arson" and arrested him on May 17, 2013.
There was no objection to any of that testimony. On the
other hand, the trial court did not issue any limiting instruction
explaining to the jury that neither a communications data warrant
nor an arrest warrant was evidence of defendant's guilt.
Moreover, Schutta's testimony about the "annoying or bothersome
texts" implied to the jury that the police had incriminating
evidence beyond that which the State had introduced at the trial.
His statement implied that M.M. had received other text messages
from defendant, in addition to the one admittedly "innocent"
message defendant sent her on March 22.
11 A-4223-15T2
Schutta testified that when defendant was arrested, the
police seized his cell phone. When defendant went through the
booking process, he was asked for pedigree information including
his phone number, and he gave the number of the phone from which
text messages had been sent to M.M. on March 22.
The prosecutor then elicited from Schutta a long explanation
as to why he did not arrest defendant earlier than May 17, 2013,
and why he did not search defendant's truck or seize his clothing
and look for evidence of gasoline. Schutta explained that the
police did not have "probable cause" to apply for a search warrant.
He also explained that the police did not want to ask defendant
for consent to search his truck until they had "significant
probable cause to make an arrest." He also made multiple other
references to "probable cause" to apply for an arrest warrant.
In the course of his testimony, Schutta also testified that
defendant became "a person of interest" when the police "learned
from [M.M.] about the unwanted text messages." Again, Schutta
implied that there had been a history of inappropriate text
messages, when in fact defendant only sent M.M. one text message,
on March 22. Additionally, in explaining, at length, how the
police obtained "probable cause" to obtain a search warrant,
Schutta implied to the jury that a judge had favorably evaluated
the State's case. His comment about "significant probable cause
12 A-4223-15T2
to make an arrest" also implied to the jury that the police had
evaluated the evidence and believed defendant was guilty.
At one point, the trial judge observed at side bar that
Schutta's thought processes and investigation strategies were not
relevant and the references to "probable cause . . . could be
prejudicial." The judge warned the prosecutor to "stay away from
having [Schutta] testify about legal conclusions." However, the
judge did not issue a curative or limiting instruction to the
jury.
On cross-examination, Schutta conceded that the Sprint
"reveal records," concerning the location of cell phones, had a
disclaimer indicating Sprint does not guarantee the accuracy of
the location information. Schutta was also confronted with the
red light video, and asked if it showed Yankees and Giants stickers
on defendant's truck. He responded that there was "something
there, hard to decipher, but there's something there." He later
admitted that there were stickers on the truck.
Schutta was also confronted with one of the security videos,
showing that when the dark truck's lights turned on as it was
leaving M.M.'s neighborhood, an entire bar of lights illuminated
on its roof. He conceded that in a photo of defendant's truck,
there were no lights on the roof. He first insisted that on the
video from the red light camera there was "something" on the roof
13 A-4223-15T2
of the cab. However, when shown the video, he admitted there was
no light "fixture" on the roof of the truck.
On redirect examination, Schutta essentially admitted that
he could not say that the truck in the red light camera video was
the same as the truck on the car repair security video taken near
M.M.s neighborhood.4 He admitted that he could tell "it's some
type of truck. Other than that, I don't know." He also admitted
that he could not "discern any type of color similarity" because
it was "at night, they're dark, it's dark out."
The State's final witness was FBI Special Agent Eric Perry,
an expert in the field of cellular site analysis, and a member of
the Bureau's cellular analysis survey team (CAST). Perry testified
that he was able to trace the movement and location of defendant's
cell phone in the early morning hours of March 22, 2013, based on
calls and texts made to and from the phone. He testified that
defendant's initial text to M.M., just before 1:00 a.m., came from
Dunellen. Later texts and phone calls came from Newark, near
Halsey Street and near the red light camera. Perry also traced
defendant's route from Newark back to Dunellen, from 3:18 a.m. and
4
The prosecutor was trying to get Schutta to explain why it might
be hard to tell if the lights on the vehicle in one video were
different from the lights on the vehicle in another video.
14 A-4223-15T2
3:43 a.m., based on communications between defendant's cell phone
and cell phone towers along Route 78.
Perry further testified that by using a method called
triangulation, he was able to place defendant's cell phone in the
area of M.M.'s house on Brandywine Rise between 3:59 a.m. and 4:02
a.m. on March 22, 2013. He testified that he verified the
information by conducting a drive test to see which cell towers
served that neighborhood. Perry also conducted a drive test for
the location of defendant's home in Dunellen. He testified that
defendant's cell phone could not have been in that location between
3:59 a.m. and 4:02 a.m., because that area of Dunellen is not
served by the cell towers with which the phone was in contact in
that timeframe.
On cross-examination, Perry admitted that his test drives
took place in April 2014, in the afternoon hours, while the
historical events took place almost a year earlier around 4:00
a.m. He admitted that usage in the area at a particular time of
day could affect which cell tower a cell phone would contact.
Perry did not know if any of the towers had been repaired to
increase their signal strength in the year before his test drive.
He also conceded that determining a cell phone's location at any
particular time could depend on whether it was stationary or
whether it was in a moving car and how fast the car was moving.
15 A-4223-15T2
Perry conceded he could not say that, at any one point in
time, defendant's cell phone "was actually at" any specific
location. Perry also agreed with defense counsel's statement that
Perry's "[FBI] unit never says someone's in this particular
location unless you're doing an active pinging of them at that
moment." In other words, Perry's methodology in this case was not
as precise as it appeared to be during his direct testimony. Perry
also admitted that the time on the car repair surveillance video
may have been inaccurate, as compared to the time reflected in the
phone company's records. However, on redirect, he asserted that
he was confident that defendant's cell phone was in the vicinity
of Brandywine Rise between 3:58 and 4:02 a.m. on March 22, 2013.
In his summation, the prosecutor once again repeated the
improper information from Schutta's testimony, telling the jury
that defendant was angry on March 22, because his "efforts to get
back together with [M.M.] and constantly texting her" were
"exposed" after he sent M.M. the text message on March 22. There
was no evidence that defendant was "constantly texting" M.M., and
there was no evidence that he was trying to "get back together"
with her.
II
For the first time on appeal, defendant contends that the
repeated references to search warrants and arrest warrants were
16 A-4223-15T2
irrelevant and prejudicial, and the trial court erred in failing
to give the jury a limiting instruction. We review this issue for
plain error. State v. Ross, 218 N.J. 130, 142-43 (2014). That
is, we consider whether the error "is of such a nature as to have
been clearly capable of producing an unjust result." R. 2:10-2.
In applying that standard, we must determine whether the claimed
error was "sufficient to raise a reasonable doubt as to whether
[it] led the jury to a result it otherwise might not have reached."
State v. Prall, 231 N.J. 567, 581 (2018) (quoting State v. Daniels,
182 N.J. 80, 95 (2004)) (alteration in original).
Defendant's argument relies heavily on Cain, which was
decided after the trial concluded. In Cain, as in this case, the
prosecutor repeatedly elicited testimony about the issuance of
search warrants:
Throughout the course of the trial, the
prosecutor repeatedly referenced that the
search of defendant's residence was authorized
by a warrant issued by the court. In his
opening statement, the prosecutor told the
jury that "[a] search warrant was then
obtained, authorized by a Superior Court
judge." The prosecutor returned to that
theme, stating that information about the drug
transactions with Hinson and Beckham was
included in "an affidavit for a search
warrant" and that "[a] search warrant [was]
brought to a judge" because "[b]efore you can
go into somebody's home under those
circumstances, you need the authority of a
Superior Court judge." In the course of
questioning witnesses, the prosecutor
17 A-4223-15T2
repeatedly elicited that a warrant was secured
to search defendant's residence and
occasionally elicited that a Superior Court
judge issued the warrant.
[Cain, 224 N.J. at 416 (alterations in
original).]
Referring to its previous decision in State v. Marshall, 148
N.J. 89, 240 (1997), the Court confirmed that a prosecutor may
appropriately "convey to the jury that the police were authorized"
to conduct a search, so the jurors are not left with the impression
that the police acted unlawfully. Cain, 224 N.J. at 433. However,
the Court cautioned that "repeated statements that a judge issued
a search warrant for a defendant's home — when the lawfulness of
the search is not at issue — may lead the jury to draw the forbidden
inference that the issuance of a warrant by a judge supports the
rendering of a guilty verdict." Ibid. The Court found that "[t]he
constant drumbeat that a judicial officer issued a warrant to
search defendant's home had little probative value, but did have
the capacity to lead the jury to draw an impermissible inference
that the court issuing the warrant found the State's evidence
credible." Id. at 436.
The Court noted with approval the holding in State v. Alvarez,
318 N.J. Super. 137 (App. Div. 1999), in which we reversed the
defendant's conviction based on multiple improper references to
18 A-4223-15T2
an arrest warrant and a search warrant. Cain, 224 N.J. at 434
(citing Alvarez, 318 N.J. Super. at 147); see also State v. Milton,
255 N.J. Super. 514, 519-21 (App. Div. 1992) (reversing the
defendant's conviction due to improper references to a search
warrant).
In this case, the prosecutor first told the jury about the
issuance of warrants in his opening statement. He then continued
the theme at considerable length during the testimony of Captain
Schutta. As we previously described, the prosecutor repeatedly
elicited improper, irrelevant, and prejudicial testimony about a
judge issuing a warrant based on "probable cause," and about the
police determining that they had "strong probable cause" to obtain
an arrest warrant. All of that testimony would naturally
communicate to the jury that the police had decided that defendant
was guilty, and that a judge had favorably evaluated the State's
evidence. Because the trial court did not issue a limiting
instruction, or explain the concept of probable cause, the jury
may have formed an exaggerated and inaccurate view of the
testimony's significance. See Alvarez, 318 N.J. Super. at 148.
The repeated references went far beyond any need to assure
the jury that the police acted lawfully. As a result, the State
misplaces reliance on Marshall, and on other cases involving only
brief references to a warrant. See State v. Williams, 404 N.J.
19 A-4223-15T2
Super. 147, 168 (App. Div. 2008); State v. McDonough, 337 N.J.
Super. 27, 32-35 (App. Div. 2001).
The State contends that defendant opened the door to the
testimony by attacking the thoroughness of the police
investigation. We disagree.
The "opening the door" doctrine is essentially
a rule of expanded relevancy and authorizes
admitting evidence which otherwise would have
been irrelevant or inadmissible in order to
respond to (1) admissible evidence that
generates an issue, or (2) inadmissible
evidence admitted by the court over objection.
The doctrine of opening the door allows a
party to elicit otherwise inadmissible
evidence when the opposing party has made
unfair prejudicial use of related evidence.
[State v. James, 144 N.J. 538, 554 (1996).]
The doctrine "has its limitations." Ibid. For example, the trial
court may exclude evidence when its probative value is
substantially outweighed by the risk of undue prejudice or where
it may mislead the jury. Ibid. (quoting N.J.R.E. 403).
In this case, the State presented testimony that the police
had obtained a search warrant to obtain M.M.'s father's clothing
and tested it for gasoline, because the father was in the house
at the time of the fire. Defense counsel asked the witness if the
police had obtained a search warrant "to take any other clothing
items at all in the investigation." The witness replied that they
had not. Defense counsel's questions inferentially placed before
20 A-4223-15T2
the jury the fact that the police never tested defendant's clothing
for accelerants. However, the defense did not focus on the
thoroughness of the police investigation, and defense counsel did
not make "unfair prejudicial use" of information about the
investigation. James, 144 N.J. at 554.
In the context of this case, the reason why defendant's
clothing was not tested was of minimal relevance. Defense
counsel's limited questioning did not give the State license to
present the extensive, highly prejudicial testimony elicited from
Schutta. See Cain, 224 N.J. at 436 (citing N.J.R.E. 403). Indeed,
the trial judge recognized the potentially prejudicial nature of
the information, but did not give a curative instruction.
This was not a clear-cut case. The State's evidence was not
overwhelming. The improper references to the judicial approval
of the warrants, and the State's "strong probable cause," could
have made a difference to the outcome. See R. 2:10-2. In addition,
both Schutta and the prosecutor made inaccurate references to
defendant sending M.M. repeated unwelcome text messages, when
there was no evidence to support that assertion. It is improper
for the prosecution to give the jury the impression that the State
has additional incriminating evidence that the jury has not heard.
See State v. Bankston, 63 N.J. 263, 271 (1973).
21 A-4223-15T2
On the morning of the fourth day of deliberations, the jury
announced that they had reached an impasse. After the judge sent
them back to continue deliberating, they reached a verdict.
However, we cannot overlook the distinct possibility that the
jury's evaluation of the evidence was tainted by the repeated
improper testimony and comments.
Viewing the record as a whole, we find that the repeated
references to search warrants, an arrest warrant, and probable
cause, with no curative instruction from the trial court, had a
clear capacity to produce an unjust result. See R. 2:10-2;
Alvarez, 318 N.J. Super. at 148; Milton, 255 N.J. Super. at 520-
21. Thus, we reverse defendant's conviction, vacate the sentence,
and remand this case for a retrial.
We are aware that while this appeal was pending, defendant
served a portion of his prison term, and he was recently released
on parole with a list of conditions including no contact with M.M.
or her family. Because we have reversed defendant's conviction,
we also vacate his sentence including his parole supervision.
However, we reinstate the original "no-contact" condition under
which defendant was previously released pretrial. Thus, as a
condition of his continued release pending the retrial, defendant
is to have no contact with M.M. or her family. In continuing that
condition, we imply no view as to the merits of the State's case,
22 A-4223-15T2
but only acknowledge that "no victim contact" is normally included
as a condition of pretrial release in these types of cases. On
remand, the trial court in its discretion may impose additional
conditions of release, if appropriate.
Because we are reversing defendant's conviction, we do not
address defendant's sentencing arguments. In the trial court,
defendant did not challenge the filing of three arson charges
based on his setting one fire. Nor did he raise the merger issue.
Should defendant wish to raise a multiplicity argument on remand,
he may present that issue to the trial court by filing a motion
to dismiss portions of the indictment prior to the retrial.
Reversed and remanded. We do not retain jurisdiction.
23 A-4223-15T2