STATE OF NEW JERSEY VS. ALAN A. BIENKOWSKI (16-07-1181, MONMOUTH 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NOT FOR PUBLICATION WITHOUT THE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-2445-16T1
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
ALAN A. BIENKOWSKI,
Defendant-Appellant.
Submitted February 27, 2019 – Decided May 30, 2019
Before Judges Alvarez and Nugent.
On appeal from Superior Court of New Jersey, Law
Division, Monmouth County, Indictment No. 16-07-
1181.
Joseph E. Krakora, Public Defender, attorney for
appellant (Frank M. Gennaro, Designated Counsel, on
the brief).
Christopher J. Gramiccioni, Monmouth County
Prosecutor, attorney for respondent (Lisa Sarnoff
Gochman, Assistant Prosecutor, of counsel and on the
brief).
PER CURIAM
Tried by a jury, defendant Alan Bienkowski was convicted of first-degree
murder, N.J.S.A. 2C:11-3(a)(1) and/or (2) (count one); first-degree felony
murder, N.J.S.A. 2C:11-3(a)(3) (count two); first-degree armed robbery,
N.J.S.A. 2C:15-1(a)(3) (count three); second-degree unlawful possession of a
weapon, N.J.S.A. 2C:39-5(b)(1) (count four); second-degree possession of a
weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a)(1) (count five); and third-
degree receiving stolen property, N.J.S.A. 2C:20-7(a) (count six). At a second
trial with the same jury, defendant was found guilty of second-degree certain
persons not to have weapons, N.J.S.A. 2C:39-7(b)(1) (count seven). At that
second trial, the jury also found that defendant had been previously convicted
of another murder, the statutory predicate for sentencing under N.J.S.A. 2C:11-
3(b)(4)(a).
The trial judge merged defendant's convictions for murder, felony murder,
robbery, and possession of a weapon for an unlawful purpose, and sentenced
defendant to life without parole. He imposed ten years imprisonment with five
years parole ineligibility on the certain persons not to possess, in accordance
with the Graves Act, N.J.S.A. 2C:43-6(c), and five years on the receiving stolen
property, to be served concurrently.
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Michael Wells, an employee of a business located next door to another
enterprise at which defendant had been employed as a delivery driver , was the
murder victim. Defendant and Wells were acquainted, and defendant was a
listed contact in the victim's cell phone.
Wells's widow testified at trial that he worked a 4 a.m. to 12 p.m. shift,
Monday through Friday, and left his home between 3:05 and 3:10 a.m. to open
up by 4:00 a.m. On his way to work, Wells would often stop to get coffee,
cigarettes, and chips. Wells's widow said he was known to carry large sums of
cash, between $500 to $1000, in a rubber band folded over his driver's license
and debit card. A coworker, Wells's manager, and Wells's son confirmed this
habit during the trial.
Surveillance cameras from multiple businesses near the scene of the
crime, as well as highway cameras, captured defendant's truck approaching
Wells's workplace, and his truck circling the site between 3:21 and 3:23 a.m.
Defendant's girlfriend and landlord testified that defendant was the only person
who ever drove his truck.
At about the same time, the victim's truck was recorded traveling towards
Wells's work site by a West Long Branch police cruiser with an automatic
license plate reader. At 3:26 a.m., a person was seen walking towards the
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victim's workplace, and a few minutes later, video showed the victim's truck
headed down the street. When the victim's truck pulled into a nearby driveway,
the security camera activated and filmed someone running in front of the vehicle
with a gun in his right hand and a long stick in the other.
At approximately the same time, a New Jersey Transit employee saw a
truck, later identified as the victim's, racing down the street spinning or
fishtailing. The eyewitness heard two pops he recognized as gun fire and
reported the disturbance to his supervisor. At approximately 4:01 a .m., the
video camera outside a business about a mile away recorded defendant's truck
leaving the area.
When other employees arrived, they immediately noticed a bag of chips,
cigarettes, and a cell phone on the ground next to the front door. When they
contacted the general manager to report the front door of the store was locked
and that the victim's belongings were on the ground outside, he told them to call
the police.
A few hours later, the victim's body was discovered on top of a metal tire
iron in the back yard of a residence some 300 yards away. He had no cash on
his person. Police found the victim's pickup truck, still running, in a nearby
driveway with some $3000 in cash in a locked glove compartment.
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The medical examiner testified that a single bullet penetrated the victim's
left arm, piercing his aorta and lung, causing death. He had also sustained blunt
force trauma to the back of his head. Approximately a year later, a handgun
fully loaded with the same caliber of ammunition that killed Wells was found
buried in the front yard of defendant's trailer. A ballistic examination identified
the gun to be the murder weapon.
At 9:30 the morning of the murder, defendant paid his outstanding
Verizon bill so his cell phone could be reactivated. The store employee testified
defendant paid the bill from "a wad of cash [in] a rubber band." She recalled
the transaction because defendant requested exact change and commented that
"money was tight." That same day, defendant paid off his trailer home rental
and other fees in cash. His bank account had been closed earlier in the month
because of a negative balance. Defendant's former girlfriend as well as the
trailer park manager testified defendant had experienced significant financial
problems from late 2012 to April 2013.
Defendant's girlfriend also testified that sometime after the murder,
defendant showed her a newspaper article about Wells's death and told her that
he used to work with him. He claimed the victim "was a drug dealer[,] carried
a bulk of money, and . . . would open the place first thing in the morning."
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When the authorities executed a consent search of defendant's bedroom,
they located several handwritten notes expressing remorse related to his
financial circumstances, and instructing his family to sell his possessions upon
his death.
Pretrial, the judge ruled in limine that the State could present evidence of
defendant's financial difficulties as motive for the armed robbery and murder ,
including records of defendant's closed bank account and his alleged suicide
notes. The State could also present proof that the victim habitually carried large
sums of cash in a rubber band, and that defendant paid overdue bills in cash the
morning of the murder. In deciding to admit the evidence over defendant's
objection, the judge observed that although clearly poverty alone does not
establish a motive for robbery, defendant's payment of his bills in cash the
morning of the victim's killing was highly probative.
During the charge conference, the State requested a flight charge. Having
seen a video which depicted defendant either quickly walking or running "after
the robbery to avoid detection" the judge overruled defendant's objection. The
judge read the jurors the model jury charge. He did not specify the charges to
which it applied.
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The State sought sentence enhancements, anticipating that defendant
would be convicted, pursuant to N.J.S.A. 2C:11-3(b)(4)(f) and (g), in addition
to (a). Thus, at the end of the first trial, the jurors agreed the murder was
committed for the purpose of escaping apprehension during flight from a
robbery.
Defendant raises the following points on appeal:
POINT ONE:
THE ADMISSION OF EVIDENCE OF
DEFENDANT'S
FINANCIAL DIFFICULTIES AS EVIDENCE OF HIS
MOTIVE TO ROB AND KILL THE VICTIM DENIED
DEFENDANT A FAIR TRIAL
POINT TWO:
THE TRIAL COURT ERRED BY ADMITTING
EVIDENCE OF THE HABITS OF MICHAEL WELLS
POINT THREE:
THE TRIAL COURT'S JURY INSTRUCTION ON
THE
DOCTRINE OF FLIGHT WAS ERROR WHICH
DENIED DEFENDANT A FAIR TRIAL
POINT FOUR:
THE MANDATORY SENTENCE OF LIFE
WITHOUT THE POSSIBILITY OF PAROLE WAS
IMPROPERLY IMPOSED ON DEFENDANT
I.
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Evidence is considered relevant if it has a tendency "to prove or disprove
any fact of consequence to the determination of the action." N.J.R.E. 401.
Except as provided elsewhere in the New Jersey Rules of Evidence or by law,
"all relevant evidence is admissible." N.J.R.E. 402. The decision to admit or
exclude certain evidence is "firmly entrusted to the trial court's discretion."
State v. Prall, 231 N.J. 567, 580 (2018) (quoting Estate of Hanges v. Metro.
Prop. & Cas. Ins. Co., 202 N.J. 369, 383-84 (2010)).
On appellate review of a trial court's evidentiary ruling, the decision will
be upheld "absent a showing of an abuse of discretion, i.e., there has been a clear
error of judgment." State v. J.A.C., 210 N.J. 281, 295 (2012) (quoting State v.
Brown, 170 N.J. 138, 147 (2001)). Thus, to overturn such a decision, the prior
ruling must have been "so wide of the mark that a manifest denial of justice
resulted." Ibid. (quoting State v. Marrero, 148 N.J. 469, 484 (1997)).
It is well-settled that motive evidence has a special role in modern
jurisprudence by "its unique capacity to provide a jury with an overarching
narrative, permitting inferences for why a defendant might have engaged in the
alleged criminal conduct." State v. Calleia, 206 N.J. 274, 293 (2011). In a
criminal prosecution, courts will generally permit a wider range of evidence to
show motive or intent compared to other issues. Ibid. (citing State v. Rogers,
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19 N.J. 218, 228 (1955)). In fact, "[a]ll evidentiary circumstances which are
relevant to or tend to shed light on the motive or intent of the defendant . . . are
admissible in evidence against him . . . ." Ibid.; see also Rogers, 19 N.J. at 229("An inference could well be drawn from it that the defendant was in need of
money and the funds he spent during the week following the murders were not
his own.").
This is not to say, however, that motive may be suggested purely by
financial difficulties. State v. Terrell, 359 N.J. Super. 241, 247 (App. Div. 2003);
see also State v. Mathis, 47 N.J. 455, 472 (1966) ("in general terms, there
must be something more than poverty to tie a defendant into a criminal milieu.").
Motive evidence is not permitted when relevance verges on ordinary propensity,
in violation of N.J.R.E. 404(a). State v. J.M., Jr., 438 N.J. Super. 215, 222-23
(App. Div. 2014). Nonetheless, if motive rests solely on circumstantial
evidence, the evidence should not be excluded as incidental, since even "an
inference of why a defendant may have engaged in criminal conduct" is
admissible. Calleia, 206 N.J. at 294.
Defendant contends that evidence of his financial situation as the motive
for the killing deprived him of a fair trial. His argument is grounded on, first,
the unduly prejudicial impact of the evidence in the absence of a 404(b) State v.
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Cofield1 analysis. Additionally, defendant contends that this evidence required
a limiting instruction and none was given, thus entitling him to a new trial.
In our view, defendant's financial condition, although certainly not a
positive, was not so damaging as to have required a 404(b) analysis or had a
prejudicial effect on the jury's deliberative process. The State did not suggest
that defendant committed the crime simply because he was poor; rather, the State
presented evidence that the morning of the murder defendant paid long-standing
bills with cash, retrieving the cash from a roll described as similar in appearance
to the manner in which the victim carried his money.
Given that the prejudice that inured to defendant because of his financial
difficulties, if any, would have been minimal, no limiting instruction would have
been needed any more than a 404(b) hearing was required. Defendant's financial
situation was clearly relevant, however, as defined in N.J.R.E. 401—it was
"evidence having a tendency in reason to prove . . . any fact of consequence to
the determination of the action." The State did not suggest defendant's
impecunious state was a generalized motive to commit crime. See, for example,
State v. Martini, 131 N.J. 176, 266 (1993) ("evidence of a defendant's financial
state should not be admitted nor commented on.").
1
127 N.J. 328 (1992).
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Even if it was error to omit a limiting instruction, that omission was
harmless. The omission, not complained of at trial, was not clearly capable of
producing an unjust result. See R. 2:10-2; State v. Lofton, 146 N.J. 295, 394
(1996). The probative value of the evidence of financial motive greatly
exceeded the risk of any undue prejudice. See N.J.R.E. 403. The circumstantial
evidence in the case was overwhelming. We see no abuse of discretion in the
judge's decision to admit the evidence, and the absence of a limiting instruction
was not plain error.
II.
Evidence of habit is admissible to prove a person acted in conformity
therewith. N.J.R.E. 406(a). Similarly, specific instances of conduct are also
admissible to prove habit "if evidence of a sufficient number of such instances
is offered" to support such a finding. N.J.R.E. 406(b). "In contrast, '[e]vidence
of a person's character or character trait, including a trait of care or skill or lack
thereof, is not admissible for the purpose of proving that the person acted in
conformity therewith . . . .'" Verni ex rel. Burstein v. Harry M. Stevens, Inc.,
387 N.J. Super. 160, 190 (App. Div. 2006) (quoting N.J.R.E. 404(a)).
Specificity distinguishes habit from character evidence. Id. at 190-91 (citing
Sharpe v. Bestop, Inc., 158 N.J. 329, 332 (1999)). Contrary to prohibited
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character evidence of a person's trait, habit refers to a specific and routine
practice that is "semi-automatic." Id. at 191.
Defendant contends that the proofs regarding the victim's habit of carrying
large sums of cash wrapped in a rubber band on a daily basis were insufficient.
This claim has so little merit as to not warrant much discussion in a written
opinion. R. 2:11-3(e)(2). The record contains ample testimony by multiple
individuals, including Wells's wife and his son; therefore, the requirements of
N.J.R.E. 406(a) were met.
If evidence of habit is admitted, it is incumbent on the trial judge to charge
the jury as to its proper use through a limiting instruction. See State v. Radziwil,
235 N.J. Super. 557, 568 (App. Div. 1989). But the court's failure to give a
limiting instruction in this case was also harmless. This error will be disregarded
as alone it was incapable of producing an unjust result.
III.
In his third point, defendant contends that the instruction on flight was
erroneous because defendant was never clearly identified on the video tapes
shown to the jury as the person on film, the instruction was applied generally to
all the offenses enumerated in the indictment, and the instruction was capable
of unduly influencing the jury's decision making.
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It was the jury's exclusive responsibility to determine whether the video
footage of defendant's truck and of a person running sufficiently identified him.
This process was adequately described to them in the flight instruction.
There was ample circumstantial evidence pointing to defendant on various
surveillance videos as he arrived at and left the scene. The perpetrator wore a
light colored sweatshirt and sweatpants, which defendant routinely wore. His
vehicle was depicted on the films.
That the instruction did not specify the counts to which it applied is
inconsequential. The robbery in this case was committed with a handgun, and
the killing was perpetrated during the course of the robbery. Thus, the flight
charge was available as to all the offenses.
That the judge charged the jury as to flight did not unduly prejudice
defendant with reference to the aggravating sentencing factors, N.J.S.A. 2C:11-
3(b)(4)(f) and (g). The flight instruction was one of many the judge gave
intended to focus the jury's attention on their obligation to find guilt only if they
considered the State's proofs to establish it beyond a reasonable doubt. Nothing
about the fact the flight instruction was given would have prejudiced jurors or
predisposed them to find an aggravating factor.
IV.
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Defendant's final argument focuses on his sentence, specifically, that all
the statutory sentencing factors, N.J.S.A. 2C:11-3(b)(4)(a), (f), and (g), were
improperly submitted. The jury had a basis for finding all of those factors.
Once defendant was convicted earlier of murder, even if that murder
actually occurred approximately a month after this one, that sufficed under (a).
The statute does not talk about a defendant committing a killing, rather, it talks
about a defendant being "convicted" of another murder. A conviction will be
deemed final when the sentence is imposed and may be an aggravating factor
regardless of whether it is on appeal.
Affirmed.
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