State v. Silvers

305 A.3d 927

477 N.J.Super. 228

STATE of New Jersey, Plaintiff-Respondent,

v.William J. SILVERS, III, a/k/a William J. Silvers, 111, William J. Silver, III, and William Silver, Defendant-Appellant.

DOCKET NO. A-2353-21

Superior Court of New Jersey, Appellate Division.

Argued September 26, 2023

Decided November 16, 2023

On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 19-07-0813.

Margaret Ruth McLane, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Margaret Ruth McLane, of counsel and on the briefs).

Leslie-Ann Marshall Justus, Deputy Attorney General, argued the cause for respondent (Matthew J. Platkin, Attorney General, attorney; Leslie-Ann Marshall Justus, of counsel and on the brief).

Appellant filed a pro se supplemental brief.

Before Judges Sabatino, Mawla and Chase.

The opinion of the court was delivered by

SABATINO, P.J.A.D.

₂₃₃The main issue in this criminal appeal is whether the trial court erred during jury selection in denying defense counsel’s requests to remove for cause two potential jurors who are police officers. The officers are employed by police departments in different municipalities from where the alleged offenses occurred, investigated, and were prosecuted, but within the same county.

₂₃₄We reject defendant’s contention that because interaction with the county prosecutor’s office is inherently a "necessary component of their jobs as police officers," active-duty police officers who work in the same county where the criminal charges arose must be stricken for cause from juries upon a defendant’s request.

Instead of applying a categorical bar, we continue the tradition of State v. Reynolds, 124 N.J. 559, 565, 592 A.2d 194 (1991), in which the Supreme Court recognized the concerns about the potential bias of police-officer-jurors, but which also declined to endorse a strict policy to remove them for cause. The Court in Reynolds instructed judges "should be inclined to excuse a member of the law enforcement community" from the jury upon a defendant’s request, leaving it to the trial courts to perform an individualized assessment of each juror’s ability to be fair and impartial. Ibid.

Extending the nuanced approach of Reynolds, we hold that a per se finding of cause to strike a criminal juror in law enforcement should only apply to employees of the same police department or prosecutor’s office that investigated or prosecuted the charged offense. To aid trial judges and counsel, we present non-exhaustive factors that should be considered in evaluating, on a juror-by-juror and case-by-case basis, whether there is cause to remove a juror employed in law enforcement. If, on the whole, those factors establish cause, the trial court "shall" remove the juror, as is required under the recently reinforced language of Rule 1:8-3(b).

Applying these principles, we affirm the trial court’s decision to deny defendant’s request to strike for cause one of the two police officers, as his voir dire elicited insufficient grounds to do so. We do find error with respect to the other officer, based on the responses from that officer during his own voir dire. However, because the latter officer was never summoned to the jury box, the court’s error in failing to remove the juror for cause was harmless.

₂₃₅In the unpublished portion of this opinion, we address unrelated arguments raised by defendant on appeal alleging evidentiary and sentencing errors. Having found those arguments lack merit, we consequently affirm defendant's convictions and sentence.

I.

This prosecution of defendant William J. Silvers, III stems from an altercation in which he punched and allegedly tried to choke his then-girlfriend, R.S.¹, on a boat docked on a pier by the Hudson River, and then allegedly threw her off the boat into the river.

At the time of the incident, R.S. and defendant had been in a relationship for about six weeks. According to her account, R.S. left work at around 11:30 p.m. on October 1, 2018. She went to meet defendant, who had brought vodka for each of them. They walked together for about thirty minutes to defendant’s boat, where he was living at the time, which was docked on a pier in Hoboken. During the walk, the two of them talked and drank the vodka. According to R.S., she consumed about a half a pint of vodka during the walk but did not feel intoxicated.

R.S. and defendant went to the boat’s cabin to sleep. While in bed together, they were conversing. R.S. requested that defendant give her the money from her paycheck that she said he owed her. According to R.S.’s testimony, she had arranged for defendant to deposit her paychecks into his bank account because she had lost her identification, and that he had agreed he would pay her the money afterwards. However, defendant began to argue with and yell at R.S. in response to her request in the boat cabin that he pay her the money.

R.S. ended the conversation, rolling over onto her side to go to sleep. Defendant continued to yell at R.S. When she turned towards him, he allegedly grabbed her by the throat with both hands, choking her. R.S. could not breathe and struggled to choke ₂₃₆him back or pull his hands off her. Defendant removed his hands but began punching her in the face and back of the head.

As described by R.S., she tried to escape, but defendant kept hitting her, striking her chest and back, and blocked the exit of the cabin by kicking and pushing her back into the boat. She eventually made it out of the cabin to the side of the boat. Realizing she could not safely get off the boat, R.S. shouted for help.

According to R.S.’s trial testimony², defendant then picked her up by her shorts and the back of her neck and threw her into the Hudson River. R.S. swam to shore, but defendant was waiting for her. Defendant left R.S. to get a rescue tube, giving her an opportunity to climb a fence and escape. R.S. made her way to a nearby apartment building, where the concierge called 9-1-1.

A patrolman from the Hoboken Police Department responded to the call at around 2:30 a.m. Observing that R.S. was wet and visibly injured, he called for an ambulance. EMTs arrived and attended to R.S. After receiving medical treatment briefly at a local hospital, R.S. filed a criminal complaint against defendant.

The Hudson County Prosecutor’s Office procured an indictment against defendant, charging him with second-degree aggravated assault by purposely attempting to cause serious bodily injury, N.J.S.A. 2C:12-1(b)(1); third-degree aggravated assault by obstructing the victim’s breathing, N.J.S.A. 2C:12-1(b)(13); and third-degree criminal restraint, N.J.S.A. 2C:13-2(a).

The case was tried before a Hudson County jury over four days in August 2021. The State presented four witnesses: R.S., the concierge, the Hoboken police officer who had responded to the 9-1-1 call, and a detective from the Hoboken Police Department who investigated the case. Defendant did not testify on his own behalf. He called two EMTs and a physician’s assistant who had attended ₂₃₇to R.S., the custodian of records from the local hospital, and the Hoboken police detective who was the lead investigator on the case.

Defense counsel argued in summation that R.S.’s account of the incident was implausible. Counsel asserted it was unlikely that defendant, who is short in stature, could have hoisted R.S. and thrown her into the river in the manner R.S. described. Counsel also noted that R.S. admitted that defendant had offered to bring her a rescue tube when she was in the water. The defense submitted that the couple merely had an argument, and that R.S. was biased and angry at defendant because she thought he owed her money. The defense argued that R.S. was intoxicated after drinking about five shots of vodka, and that her recollection of the events was untrustworthy. Through the medical witnesses and records, the defense further asserted R.S. was not seriously injured in the incident, and she had sustained only minor bruises, a contusion on her nose, and a loose tooth.

In addition, defense counsel argued the police had conducted a shoddy investigation. Among other things, counsel noted the lead detective admitted to speaking with R.S. before taking her recorded statement and misplacing his interview notes, which he failed to turn over in alleged violation of Attorney General Guidelines. The detective did not try to find video surveillance footage that might have captured the events or bank deposit records that might have corroborated her narrative.

The jury found defendant guilty of the lesser included offense of third-degree aggravated assault (which requires proving only a risk of significant bodily injury, not serious bodily injury), and criminal restraint. The jury acquitted defendant of the charge of aggravated assault by obstruction of breathing.

At sentencing in January 2022, the trial court found defendant qualified as a persistent offender under N.J.S.A. 2C:44-3 because he had been convicted of at least two crimes since turning the age of eighteen and had been released from confinement only seven-and-a-half years before the present offenses. The court noted ₂₃₈defendant had several previous instances of domestic violence, some of which resulted in final restraining orders.

The court found several pertinent aggravating factors: two, N.J.S.A. 2C:44-1(a)(2) (severity of harm to victim); three, N.J.S.A. 2C:44-1(a)(3) (risk of recidivism); six, N.J.S.A. 2C:44-1(a)(6) (extent and severity of defendant’s prior criminal history); and nine, N.J.S.A. 2C:44-1(a)(9) (need for deterrence). The court identified no mitigating factors.

Based on this analysis, the court sentenced defendant to a custodial term of five years, with two-and-a-half years of parole ineligibility. At the same hearing, the court sentenced defendant in a separate matter, pursuant to a plea agreement, to a concurrent four-year custodial term for...