STATE OF NEW JERSEY v. STEVEN J. KADIR

After the court denied defendant's motion for discovery,

the parties tried this case on several days before a judge and

jury. The State produced testimony from a Robbinsville Township

(the Township) Fire Department captain, the Township's former

director of fire (the Director), the payroll benefits

coordinator for the Township, the deputy chief of the Township's

Fire Department, and two lieutenants in the Township's Police

Department. Defendant testified and produced testimony from an

expert in the field of accounting, two captains from the

Township's Fire Department, a Township firefighter, and a family

friend and co-volunteer firefighter. We discern the following

facts from the evidence adduced at trial.

Defendant was a full-time firefighter for more than a

decade. In that capacity, defendant was required to submit

biweekly timesheets accurately documenting his hours worked.

Ordinarily, the Director would review firefighter timesheets for

accuracy before they were sent to the Township's finance

department. However, the Director employed by the Township

between 2009 and early 2012 did not adequately audit defendant's

timesheets. As a result, defendant's time sheets, which failed

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to identify significant periods of vacation time were submitted

for payment.

The police investigated defendant's timesheets and learned

that between 2009 and 2012, defendant failed to document 20

hours of vacation time in 2009, 120 hours in 2010, 168 hours in

2011, and 48 hours in the first three months of 2012. As a

result, during this period, defendant did not record 356 hours

of paid leave, resulting in a benefit to defendant of $10,392.

The jury found defendant guilty on all counts. After the

verdict and in preparation for sentencing, defendant obtained a

report from a psychologist indicating that defendant had "gone

through adult life with a disability involving" attention

deficit/hyperactivity disorder (ADHD) and certain learning

disabilities. According to the psychologist, defendant's ADHD

affected his ability to properly complete administrative tasks,

such as timesheets. Defendant moved for a new trial arguing the

verdict should be vacated based on this information. The court

conducted oral argument, denied that motion, and imposed an

aggregate five-year prison sentence with one year and five days

of parole ineligibility.

On appeal, defendant raises the following arguments:

POINT I The trial court infringed on [d]efendant's right to present a complete defense by

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foreclosing any consideration of [the Director's] negligence. (Raised Below).

A. [The pre-trial motion judge] erred in denying [d]efendant's discovery motion. (Raised Below).

B. [Defendant's accounting expert's] testimony should have been permitted. (Raised Below)[.]

C. The curative instruction striking [the accountant's] response was unnecessary, overbroad and prejudicial. (Raised Below)[.]

POINT II The trial court failed to adequately cure [a lieutenant's] improper opinion [testimony] of [d]efendant's guilt. (Partially Raised Below).

POINT III Cumulative error cost [d]efendant a fair trial. (Not Raised Below).

POINT IV The Motion for a New Trial should have been granted, because [the psychologist's] opinion cast substantial doubt on the verdict. (Raised Below). We conclude that defendant's argument in Point III is

"without sufficient merit to warrant discussion in a written

opinion." R. 2:11-3(e)(2). We focus instead on Points I, II,

and IV.

I.

We begin by addressing defendant's contention the pre-trial

motion judge erred by denying his discovery motion. Defendant

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maintains: (1) the discovery denial deprived him of the ability

to present a complete defense to the charges; (2) the trial

judge erroneously excluded opinion testimony from defendant's

accounting expert based on the discovery ruling; and (3) the

court exacerbated that evidentiary ruling by giving a flawed

curative instruction.

A.

Defendant filed a motion seeking to compel the State to

produce various pieces of information, primarily: (1) notes, a

calendar, calendar book, and email records from the Director's

administrative assistant; and (2) the Director's timesheets from

2009 to 2012. Defendant maintains he did not purposefully

submit inaccurate timesheets. He argues the documentation would

have bolstered his testimony that his actions amounted to

mistakes, not intentional conduct.

We review a court's denial of discovery requests under an

abuse of discretion standard. State v. Enright, 416 N.J. Super.

391, 404 (App. Div. 2010), certif. denied, 205 N.J. 183 (2011).

The judge's determination was, in essence, premised upon the

relevance of the discovery sought. Although defendants are

entitled to broad discovery, Rule 3:13-3, the information sought

must be relevant. State v. Ballard, 331 N.J. Super. 529, 538

(App. Div. 2000) (explaining "[d]iscovery is appropriate if it

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will lead to relevant and material information"). "'Relevant

evidence' is defined as 'evidence having a tendency in reason to

prove or disprove any fact of consequence to the determination

of the action.'" State v. Gilchrist, 381 N.J. Super. 138, 146

(App. Div. 2005) (quoting N.J.R.E. 401). "In determining

whether evidence is relevant, the inquiry should focus upon 'the

logical connection between the . . . evidence and a fact in

issue.'" State v. Darby, 174 N.J. 509, 519 (2002) (quoting

State v. Hutchins, 241 N.J. Super. 353, 358 (App. Div. 1990)).

"If the evidence offered makes the inference to be drawn more

logical, then the evidence should be admitted unless otherwise

excludable by a rule of law." Ibid. (quoting State v. G.V.,

162 N.J. 252, 272-73 (2000) (Coleman, J., concurring in part and

dissenting in part)).

We accord "substantial deference to a trial court's

evidentiary rulings." State v. Morton, 155 N.J. 383, 453

(1998), cert. denied, 532 U.S. 931, 121 S. Ct. 1380, 149 L. Ed.

2d 306 (2001). "[T]he decision of the trial court must stand

unless it can be shown that the trial court palpably abused its

discretion, that is, that its finding was so wide of the mark

that a manifest denial of justice resulted." State v. Goodman,

415 N.J. Super. 210, 224-25 (App. Div. 2010) (quoting State v.

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Carter, 91 N.J. 86, 106 (1982)), certif. denied, 205 N.J. 78

(2011).

The pre-trial motion judge heard oral argument, denied

defendant's motion to compel discovery, and issued a written

decision stating:

The State argues that the discovery requested goes beyond the scope of what the State is obligated to provide under Rule 3:13-3. Defendant argues that copies of [the Director's] time[]sheets and [the assistant's] calendar are necessary to demonstrate defendant lacked the requisite state of mind for purposeful or knowing conduct. Defendant maintains he simply made mistakes on his time[]sheets and relied upon [the Director] to correct any errors. He asserts [the assistant's] calendar and notes will demonstrate [the Director] was not adequately performing his supervisory duties, and that [the Director's] time[]sheets will show he submitted falsified time[]sheets. He further argues that [the Director's] time[]sheets will provide impeachment material.

. . . .

The [c]ourt rejects defendant's asserted need to obtain information regarding [the Director's] work performance. The requested information does not appear to have any value for impeachment purposes and does not tend to prove or disprove any facts of consequence to defendant's guilt or innocence. The [c]ourt agrees with the State's argument that [the Director's] negligence in allowing defendant to submit false time[]sheets does not establish a defense to the allegations. Whether defendant will be found guilty will be determined by his conduct. Defendant is

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free to argue that he did not act knowingly or purposefully, but was merely negligent when he submitted inaccurate time[]sheets.

We conclude the judge did not abuse his discretion in

denying defendant's discovery motion. The key issue was whether

defendant purposefully or knowingly falsified his timesheets to

fraudulently obtain a benefit, or whether he lacked the

requisite mindset and was simply negligent. Defendant contends

that the Director's negligence in failing to adequately review

the timesheets bolsters his defense that defendant was merely

acting negligently and expecting any errors to be corrected by

his supervisor. Evidence as to whether the Director was

negligent does not answer the crucial question of defendant's

mental state when he actually submitted his timesheets.

Regardless of whether the Director was negligent, and even if we

assume he was, such evidence does not aid in determining

defendant's mens rea when he submitted his timesheets. Indeed,

the Director himself admitted he did not adequately check

defendant's timesheets. Nevertheless, this admission did not

establish defendant's mens rea in submitting the timesheets, and

thus further information as to the Director's negligence would

similarly have failed to establish the issue at hand, namely

defendant's mental state.

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The judge made clear that defendant was free to argue to

the jury that he lacked the mens rea to commit these crimes, and

that he was simply negligent in submitting the timesheets, an

issue analytically distinct from what was actually done with

said timesheets once they were submitted. Defendant had a full

opportunity to make this argument at trial, and was

unsuccessful. We conclude the judge did not abuse his

discretion in denying the motion to produce discovery when the

requested information was, at best, ancillary to the issue in

the case.

B.

We disagree with defendant's argument that the trial judge

erred by striking certain expert opinion testimony proffered by

defendant's accounting expert. Applying our deferential

standard of review on evidentiary rulings, we conclude there was

no abuse of discretion. See State v. Buda, 195 N.J. 278, 294

(2008).

In response to defense counsel's question on direct

examination about whether the Township could have used its two

software programs to verify the timesheets submitted by the

firefighters, the accountant testified defendant's mistakes

would have been caught if the programs were used on a

contemporaneous basis to check submitted timesheets. He added

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"if those systems were used . . . [they] would have corrected

any [timesheet] mistakes" made by defendant.

The State objected maintaining it was irrelevant whether a

computer system would have established the accuracy of submitted

timesheets.1 The judge sustained the objection striking the

testimony from the record and rejecting defendant's contention

that the accountant's opinion would have corroborated

defendant's defense that he lacked the mens rea to commit the

crimes. The judge independently concluded that such opinion

testimony was irrelevant, agreeing essentially with the pre

trial motion judge who found "[d]efendant is [still] free to

argue that he did not act knowingly or purposefully, but was

merely negligent when he submitted inaccurate time sheets." At

any rate, it would be the Director's responsibility to check the

accuracy of defendant's timesheets, and it is clear that the

Director failed to do so, as the undisputed evidence

demonstrated. Thus, the ability of the Director to use the

software programs to verify the timesheets provided to him by

the firefighters does not answer the question as to whether

defendant purposefully or knowingly submitted false timesheets,

and therefore the expert's testimony was properly excluded.

1 Defendant did not testify he submitted his timesheets relying specifically on the Township's software programs to catch any errors.

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C.

We conclude the judge did not err by giving a curative

instruction to the jury striking that part of the accountant's

testimony. The judge instructed the jury:

As you heard, the witness made a response to the last question, in effect, that a supervisor could have checked any firefighter's timesheet to determine – and compare it against [the two software programs] for any discrepancies and presumably then could have corrected any discrepancies.

I am going to strike that witness's last statement from the record. You[ a]re not permitted to consider that statement when you go to deliberate.

I do tell you as part of my final charge at the end of the case after all the evidence is presented . . . I will give you specific instructions as to how any supervisor's lack of supervision, in particular reviewing timesheets, impacts any defense [] defendant may have had to these charges. Defendant did not object to this curative instruction, and has

not argued on appeal that the final jury charge was given in

error.

Because defendant failed to object to the language of the

curative instruction, "we review the [instruction] for plain

error and reverse only if such an error was 'clearly capable of

producing an unjust result.'" State v. Miller, 205 N.J. 109,

126 (2011) (quoting R. 2:10-2). "Pursuant to Rule 1:7-2,

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defendant's failure to object [to a curative instruction]

constitutes a waiver of his right to challenge that instruction

on appeal." State v. Docaj, 407 N.J. Super. 352, 362 (App.

Div.), certif. denied, 200 N.J. 370 (2009). "If the defendant

does not object to the [curative instruction] at the time it is

given, there is a presumption that the [curative instruction]

was not error and was unlikely to prejudice the defendant's

case." State v. Singleton, 211 N.J. 157, 182 (2012). Applying

these standards, we conclude there was no error, let alone plain

error.

Defendant speculates that the curative instruction had the

"practical effect" of discounting other testimony. In his

curative instruction, the judge did not reference testimony from

other witnesses. He simply directed the jury to disregard that

part of the accountant's testimony, and then later repeated that

instruction in the final charge.

II.

A lieutenant testified at trial about her investigation of

defendant's timesheets. She testified that after the police

discovered defendant failed to document 168 hours of vacation

time, "we're past the mistake stage." After defense counsel

objected, the trial judge sustained the objection, and

immediately issued a curative instruction: "All right, ladies

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and gentlemen, you heard this lieutenant give her own personal

opinion based upon her investigation. That's an improper

remark. I'm going to ask you to disregard it. I'm going to

strike it from the record."

Defense counsel argues for the first time that the

instruction lacked specificity and firmness. "Pursuant to Rule

1:7-2, defendant's failure to object constitutes a waiver of his

right to challenge that instruction on appeal" unless the

alleged error in the charge meets the plain error standard.

Docaj, supra, 407 N.J. Super. at 362.

The effect of improperly admitted evidence can be

eradicated by an immediate and strong curative instruction to

the jury to disregard the evidence; the curative instruction

must be "firm, clear, and accomplished without delay." State v.

Vallejo, 198 N.J. 122, 134 (2009). Here, the judge instructed

the jury to disregard the statement entirely. The firmness and

specificity of the instruction here is evident. Also, the final

charge to the jury instructed them to disregard stricken

testimony. As a result, we conclude there was no plain error.

See R. 2:10-2.

III.

Defendant argues he learned after the verdict he had a

learning disability. He maintains that his ADHD may have raised

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a reasonable doubt as to whether, as he testified, his

inaccurate timesheets resulted from his own mistakes. Defendant

contends this information constitutes new evidence warranting a

new trial.

To prevail on this argument, defendant must establish all

three of the following criteria. The evidence must be "(1)

material to the issue and not merely cumulative or impeaching or

contradictory; (2) discovered since the trial and not

discoverable by reasonable diligence beforehand; and (3) of the

sort that would probably change the jury's verdict if a new

trial were granted." State v. Nash, 212 N.J. 518, 549 (2013)

(quoting State v. Carter, 85 N.J. 300, 314 (1981)). "[P]rongs

one and three are inextricably intertwined." Ibid. As to these

prongs, "[t]he power of the newly discovered evidence to alter

the verdict is the central issue." Id. at 549-50 (quoting State

v. Ways, 180 N.J. 171, 191-92 (2004)). Defendant failed to

establish this criteria.

As to the first and third prongs, we conclude the

information in the psychologist's report is not the type that

would "probably change the jury's verdict." Defendant, who was

in his mid-thirties and without question an exceptional

firefighter, testified he was generally disorganized and his

timesheet errors amounted to mistakes. This is not a situation

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where defendant made an occasional error submitting his

timesheets. The evidence demonstrated he made repeated

omissions, by not placing a "V" on a computerized timesheet,

over a four-year period, primarily related to vacation time.

The information in the report, therefore, is not the type of

evidence that "would shake the very foundation of the State's

case and almost certainly alter the earlier jury verdict." Id.

at 549 (quoting Ways, supra, 180 N.J. at 189).

Prong two mandates that "the new evidence must have been

discovered after completion of trial and must not have been

discoverable earlier through the exercise of reasonable

diligence." Id. at 550 (quoting Ways, supra, 180 N.J. at 192).

It is well settled that the defense must "act with reasonable

dispatch in searching for evidence before the start of the

trial." Ibid. (quoting Ways, supra, 180 N.J. at 192).

Defendant has not shown that the information contained in the

psychologist's report was not discoverable prior to trial

"through the exercise of reasonable diligence." The

psychologist opined defendant had "gone through adult life with

a disability involving [ADHD]." And as early as third or fourth

grade, defendant's mother observed he had learning and

organizational problems.

Thus, defendant had ample opportunity to discover and raise this defense at trial.



Affirmed.