                                NOT FOR PUBLICATION WITHOUT THE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-4239-17T2

STATE OF NEW JERSEY,

         Plaintiff-Respondent,

v.

DANIEL J. MARKS,

     Defendant-Appellant.
_____________________________

                   Submitted April 3, 2019 – Decided April 30, 2019

                   Before Judges Koblitz, Currier and Mayer.

                   On appeal from Superior Court of New Jersey, Law
                   Division, Camden County, Indictment No. 17-03-0575.

                   Joseph E. Krakora, Public Defender, attorney for
                   appellant (Michael Timothy Denny, Assistant Deputy
                   Public Defender, of counsel and on the brief).

                   Mary Eva Colalillo, Camden County Prosecutor,
                   attorney for respondent (Jason Magid, Assistant
                   Prosecutor, of counsel and on the brief).

PER CURIAM
      Defendant Daniel J. Marks appeals from his March 23, 2018 conviction

after trial of third-degree theft of services over $500, N.J.S.A. 2C:20-8(a) and

N.J.S.A. 2C:20-2(b)(2)(a), by driving his girlfriend's car, without an E-ZPass

transponder, through an E-ZPass lane 224 times in six months. The judge

sentenced defendant to five years of probation, $1,210 in restitution and 125

hours of community service. Because the judge incorrectly instructed the jury

over defendant's repeated objection, we reverse.

      In 2016, a 2011 Hyundai Elantra with New Jersey plates drove through

the E-Z Pass lanes of the Ben Franklin and Walt Whitman bridges a total of 224

times without an E-ZPass transponder.         Each time, the tollbooth camera

photographed the license plate—but not the driver—and a notice of violation

was mailed to the car's registered owner, defendant's girlfriend.

      Defendant lived with his girlfriend, her father, sister, brother, two nieces,

and defendant's daughter.     Delaware River Port Authority Police Corporal

Richard Zappile testified that when he called defendant's girlfriend on

November 23, 2016 regarding the toll violations, she denied any knowledge and

said her boyfriend, who drove the car, would call the officer back. Defendant

called and agreed to meet the officer. Shortly after this telephone conversation,




                                                                          A-4239-17T2
                                        2
Zappile wrote a report noting that defendant admitted on the telephone that "he

was responsible for all the violations," with no further specificity.

       Defendant gave a statement at the police station a week later on November

30 and was arrested; however, after a Miranda1 hearing in September 2017, the

court suppressed the contents of that police station statement. The suppression

order did not cover the telephone conversation, which the court held admissible.

Testifying at the Miranda hearing, Zappile described the telephone conversation

as briefly as he had in his original written report.

       Upon receiving a subpoena within a month of trial—and over a year after

he wrote the report—Zappile drafted a supplemental report, which added details.

He reported that defendant admitted on the telephone that he alone had driven

the car and his girlfriend had no part in the violations; he threw away all the

violation notices that arrived in the mail; and he drove through the E-ZPass lanes

without a transponder "because it was easy."           Zappile also put in this

supplemental report that defendant arrived at the police station on November 30

in his girlfriend's Elantra.

       At trial, defendant's girlfriend confirmed that in 2016 she lived with

defendant, who drove her to and from Cherry Hill, where she worked five days


1
    Miranda v. Arizona, 384 U.S. 436 (1966).
                                                                         A-4239-17T2
                                         3
a week from 8:00 a.m. to 4:30 p.m. She stated that defendant had possession of

her car during the day, but her other family members also used it at times. She

also testified that defendant admitted to her that he drove through the E-ZPass

lane without a transponder, but only "[a] couple of times."

      The defense theory was that one or more of his girlfriend's relatives living

with her committed the violations. The defense also argued that, contrary to

Zappile's supplemental report, defendant never admitted to committing the

violations "because it was easy" or throwing out the notifications . Defense

counsel argued:

            All we know is that [defendant] wanted to take
            responsibility for his girlfriend . . . and he came to the
            police station, he wanted to pay the tickets, and he told
            the officer please don't charge my girlfriend. He did
            not want [her] to get in trouble.

      To discredit Zappile's account of the telephone conversation, the defense

highlighted that neither the officer's initial report nor his testimony at the

Miranda hearing mentioned defendant's alleged admission to throwing out the

notices and committing the violations "because it was easy." He only mentioned

these admissions in his supplemental report, which he wrote in preparation for

trial over a year after the telephone call, and again in his in-court testimony.




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                                        4
Zappile also brought up the suppressed station house statement in front of the

jury, although the court did not allow Zappile to describe the statement.

      Because defendant contested Zappile's recent version of the unrecorded

telephone conversation, the judge instructed the jury about the unreliability of

such statements. At the Rule 1:8-7 charge conference, the judge read to counsel

his proposed jury charge. Neither attorney had a written copy, but the judge

assured counsel he would provide the final draft the next day, before he

delivered it to the jury. The proposed instruction contained an error: it quoted

Zappile as testifying that defendant admitted to committing the crime "because

it was easy" at the police station—instead of on the telephone.

      The judge read the proposed charge to counsel:

            Corporal Richard Zappile of the Delaware River Port
            Authority testified . . . he called the registered owner of
            the motor vehicle depicted in the photograph and spoke
            to a woman who identified herself as [defendant's
            girlfriend], the owner of the motor vehicle. [She] said
            her boyfriend drives the vehicle and she would have
            him call the officer. Approximately two hours later the
            officer received a call from a man who identified
            himself as [defendant]. The individual indicated he was
            responsible for the violations as he ha[d] driven the car.
            When he continued to speak about the various
            violations, the officer indicated [defendant] should
            come to the police department and made a date and time
            for him to come in. At the agreed upon time, the
            defendant . . . drove to the police department, identified
            himself by producing his driver[']s license and met with

                                                                          A-4239-17T2
                                        5
      the officer. At th[at] time in the conversation the
      defendant admitted he was the driver of the vehicle in
      the photographs, his girlfriend had nothing to do with
      this. He indicated he continued to drive through E-
      ZPass lanes without paying because it was so easy.

After the judge read the proposed charge, defense counsel objected:

      [DEFENSE COUNSEL]: I believe you said that there
      was a conversation with [defendant] and the corporal .
      . . [at] the police station.

      THE COURT: That's exactly what the officer said.

      [DEFENSE COUNSEL]: Well, that should be stricken
      because --

      THE COURT:        Why?     That's a -- that's an oral
      statement.

      [DEFENSE COUNSEL]: He did not go into -- he did
      not discuss -- he did not testify that there was a
      conversation at the police station.

      THE COURT: Counsel, isn't that when he said that he
      -- that he remembered he said that he drove through
      because it was easy?

      [DEFENSE COUNSEL]: No. That was during the
      telephone call.

      [THE STATE]: That's correct, Judge.

      THE COURT: Okay. Fine. I'll change that to the
      telephone calls.




                                                                A-4239-17T2
                                6
      Upon reviewing the final draft of the charge the next day, counsel

discovered the judge had not corrected the error.         Defense counsel again

objected that the proposed jury charge should relate only to the telephone

conversation, not the suppressed statement at the police station.

      The judge replied to the defense, "Counsel, this is exactly the way I read

it to you yesterday. There was no objection yesterday." He went on, "All that

this is doing is giving a sequence to the jury as to when the conversations may

have occurred, and there's nothing that isn't part of the record here." Defense

counsel clarified that she had, in fact, objected the previous day. The trial judge

nonetheless stated he did "not see how this is objectionable in any way, it's just

giving [context] to what had occurred, in this case, and testimony at trial." The

judge delivered the jury instruction with the error uncorrected, misstating

Zappile's testimony. The defense renewed its objection after the judge delivered

the charge.

       Defendant raises the following single issue on appeal:

              POINT I: THE COURT ERRED BY GIVING A
              FACTUALLY    INACCURATE   INSTRUCTION
              ABOUT DEFENDANT'S ORAL OUT-OF-COURT
              STATEMENT,     EVEN    THOUGH     THE
              INACCURACY WAS FLAGGED BY DEFENSE
              COUNSEL     MULTIPLE    TIMES    AND
              ACKNOWLEDGED BY THE STATE AS BEING
              WRONG.

                                                                          A-4239-17T2
                                        7
      Where a defendant timely objects to a judge's erroneous presentation of

the facts, we review under the harmless error standard—that is, whether a real

possibility exists that the error "might have contributed to the conviction." State

in re A.S., 203 N.J. 131, 153 (2010) (quoting State v. Sanchez, 129 N.J. 261,

278 (1992)). Under this standard, we should reverse a conviction unless we can

"say with assurance" that the error "did not influence [the fact-finder's]

conclusion of guilt." State v. Miller, 64 N.J. Super. 262, 265 (App. Div. 1960);

State v. Bankston, 63 N.J. 263, 272-73 (1973) ("We cannot say the proof was so

overwhelming as to foreclose a real possibility that the jury gave decisive weight

to the improper hearsay testimony."). An error is not harmless merely because

the evidence suffices to convict or to persuade the appellate court of the

defendant's guilt. State v. Zwillman, 112 N.J. Super. 6, 20 (App. Div. 1970).

      Because "proper charges to a jury are essential for a fair trial," a charge

that "tend[s] to confuse or mislead" warrants reversal "where the jury outcome

might have been different had the jury been instructed correctly." Velazquez ex

rel. Velazquez v. Portadin, 163 N.J. 677, 688 (2000) (quoting State v. Green, 86

N.J. 281, 287 (1981)).

      The judge erred while instructing the jury to regard defendant's alleged

telephone statement with caution. State v. Kociolek, 23 N.J. 400, 421 (1957),


                                                                          A-4239-17T2
                                        8
which applies to testimony concerning a defendant's out-of-court oral statement,

requires a warning to the jury about the general lack of reliability of second-

hand oral statements. A Kociolek charge should stress the inherent dubiousness

of such evidence, not because of concerns of strong-arming but due to a witness's

"generally recognized risk of inaccuracy and error in" recalling what another

person said. Ibid.; State v. Baldwin, 296 N.J. Super. 391, 400 (App. Div. 1997);

Model Jury Charges (Criminal), "Statements of Defendant" (rev. June 14, 2010).

      While the jury charge here warned about the dangers of crediting second-

hand oral statements, it simultaneously bolstered Zappile's credibility by

mistakenly placing defendant's alleged admissions at the police station, rather

than on the telephone. This misstatement occurred after the officer improperly

raised the issue of a station house statement before the jury, thus potentially

confusing the jury.

      Defendant challenged Zappile's account not only as a second-hand oral

report but also as contradicting Zappile's own previous written and oral

accounts. The first report referenced the telephone conversation in a single

sentence: "[defendant] contacted me via telephone and advised me he was

responsible for all the violations." Zappile testified similarly at the Miranda

hearing. Only after the station house statement was suppressed, in preparation


                                                                        A-4239-17T2
                                       9
for trial over a year after the telephone conversation, did Zappile add

information. He explained that the new facts only occurred to him when he

received the trial subpoena. This inconsistency was enough to call into question

Zappile's credibility, but the jury needed the assistance of clear jury instructions,

because the jury was unaware that the officer could be embellishing the

telephone conversation to compensate for the suppression of defendant's station

house statement.

      The version of events as the judge represented them had a substantial

capacity to prejudice defendant’s case.          While the evidence—including

defendant's undisputed remark on the telephone about taking responsibility for

the violations—was sufficient to convict him, the defense advanced a different

theory explaining that evidence—namely, that defendant assumed responsibility

for what someone else had done.         A reasonable doubt exists that the jury

discredited this alternative version in part because it believed defendant

admitted to committing all of the violations "because it was easy" and to

throwing out all of the notices, which implied an admission of his own guilt for

all violations.

      The judge did instruct the jurors to disregard the court's recital of the

evidence where it differed from their own recollection. Courts have often relied


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                                        10
on similar statements about the jury's fact-finding duty in declining to reverse

because a judge misstated the facts. See State v. Feaster, 156 N.J. 1, 72 (1998);

State v. Conklin, 54 N.J. 540, 547 (1969); State v. Tansimore, 3 N.J. 516, 538

(1950); State v. Kennedy, 135 N.J. Super. 513, 527 (App. Div. 1975); State v.

Long, 67 N.J. Super. 207, 211-12 (App. Div. 1961). However, those decisions

differ from this case in two significant respects.

      First, in several of those decisions the appellate court applied the plain -

error standard because the error was not raised in the trial court, permitting

reversal only where an error could clearly produce an unjust result. See Feaster,

156 N.J. at 72; Conklin, 54 N.J. at 547; Long, 67 N.J. Super. at 212. Thus, the

ample incriminating evidence in those cases made it unlikely that a judge's error

prejudiced the outcome.        Second, those cases involved mostly trivial

misstatements of fact that did not go to the heart of the defense. See Tansimore,

3 N.J. at 538; Kennedy, 135 N.J. Super. at 527.

      Here, by contrast, because defense counsel preserved the issue, we review

for harmless error; therefore, the relevant question is whether a reasonable doubt

exists that the misstatement confused the jury and affected their own recollection

of the facts. State v. Macon, 57 N.J. 325, 338 (1971). A reasonable doubt exists

whether the error contributed to the jury's decision. This is particularly true


                                                                         A-4239-17T2
                                       11
because, to convict defendant of a third-degree theft, the State had to prove

beyond a reasonable doubt that defendant accumulated more than $500 worth of

toll evasions while he was driving the car.2 N.J.S.A. 2C:20-2(b). A reasonable

doubt that defendant drove through the E-ZPass enough times to avoid $500 in

tolls should have resulted in an acquittal.

      The additional admissions, instead of merely showing that defendant

"took responsibility"—which he explains as a chivalrous attempt to shield his

girlfriend—tied defendant to all of the 224 violations, because he allegedly

admitted to discarding each notice mailed to the house. See Kern, 325 N.J.

Super. at 444 ("To dismiss a confession of guilt as 'not critical in light of the

other fact findings' is, we think, contrary to human nature.").

      Reversed and remanded for further proceedings.          We do not retain

jurisdiction.




2
  Prior to trial another judge denied defendant's motion to dismiss the indictment
for failure to charge a crime. Defendant contended the behavior charged
amounted to a civil wrong only. He does not appeal from this July 14, 2017
order.
                                                                         A-4239-17T2
                                       12
