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                               APPROVAL OF THE APPELLATE DIVISION
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                                                        SUPERIOR COURT OF NEW JERSEY
                                                        APPELLATE DIVISION
                                                        DOCKET NO. A-3158-18






                   Submitted January 11, 2021 – Decided February 16, 2021

                   Before Judges Messano and Smith.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Middlesex County, Indictment No. 17-11-

                   Douglas Herring, attorney for appellant.

                   Christopher L. C. Kuberiet, Acting Middlesex County
                   Prosecutor, attorney for respondent (Joie D. Piderit,
                   Special Deputy Attorney General/Acting Assistant
                   Prosecutor, of counsel and on the brief).

       A Middlesex County grand jury indicted defendant Sudeep Khetani for

burglary, N.J.S.A. 2C:18-2, and endangering the welfare of a child, N.J.S.A.

2C:24-4(a)(2). The State contended defendant assaulted S.K. (Sally) in her car

with her seven-year-old son in the back seat. 1 The indictment alleged that "in

the course of committing" the burglary of Sally's car, defendant "purposely

inflicted bodily injury" on her, thereby elevating the burglary from a third-

degree to a second-degree crime. See N.J.S.A. 2C:18-2(b)(1) ("Burglary is a

crime of the second degree if in the course of committing the offense, the actor

. . . [p]urposely . . . inflicts, attempts to inflict or threatens to inflict bodily injury

on anyone[.]"). In the same complaint-warrant that charged defendant with

burglary, the State also charged defendant with simple assault, N.J.S.A. 2C:12 -

1(a)(1), a disorderly persons offense, and harassment, N.J.S.A. 2C:33 -4(b), a

petty disorderly persons offense.

       The jury acquitted defendant of both counts of the indictment. However,

sitting as the fact finder on the two non-indictable offenses in the complaint, the

  The indictment used the initials of the victim and her son, which we assume
the State believed was authorized by Rule 1:38-3(c)(9) and -3(c)(12); those
subsections exclude from public access the identities of victims or alleged
victims of child endangerment and domestic violence. We will do the same,
even though, as will be disclosed, Sally testified that she did not know defendant
and, therefore, she was never a victim of domestic violence. See N.J.S.A.
2C:25-19(d) (defining the term "[v]ictim of domestic violence").
judge found defendant guilty of simple assault and harassment.           After

considering and denying what we construe was a motion for acquittal as to the

non-indictable offenses on the sentencing date, the judge merged the two

offenses and imposed only mandatory financial penalties on defendant.2

     Defendant now appeals, raising the following points for our consideration:

           POINT I

           STATE'S   CASE-IN-CHIEF,   WHERE      THE

           POINT II


           POINT III


  The judgment of conviction reveals that defendant received 490 days of jail
credit at the time of sentencing.


      The testimony at trial revealed that on September 22, 2017, at

approximately 3 p.m., Sally and her son left the Can Do Fitness Center and

entered her car in the gym's parking lot. A white car stopped directly in front of

hers, a man exited and approached. Sally had seen the man at the gym four or

five times before, was "creeped out," because he had stared at her, but, she did

not know his name. The man opened the driver's side door, punched Sally in

the head, and said, "Who do you think you are making faces at me[?]" He then

got back into his car and drove off.

      Sally experienced some pain but suffered no visible injuries . She went

back into the fitness center to report the incident, and, through the assistance of

two of the gym's employees, she identified an internet photograph of defendant

as her attacker. He had been a member of the fitness center but left several

months earlier.   Sally made an in-court identification of defendant as her


      Sally's son also testified and generally corroborated his mother's version

of events.   However, when asked if he could identify the assailant in the

courtroom, the boy pointed to juror number three.

      Plainsboro Township Police Officer Patrick Miller testified that he

responded to the fitness center and spoke with Sally, who described the assault

and her assailant. The officer was supplied with a photo of defendant and a

possible address; he responded to defendant's home and spoke with him. On

cross-examination, in response to a specific question from defense counsel, the

officer said defendant told him that he (defendant) had recently returned home

from a different gym, the Princeton Fitness and Wellness Center (PFW Center).

Officer Miller acknowledged his police report did not contain that information. 3

      Several weeks before trial, defendant served the State with a notice of

alibi. Accompanying counsel's cover letter was defendant's signed certification,

in which he asserted he was at the PFW Center on September 22, 2017, used his

"key tag scan card" to enter that gym, and told police when they contacted him

at his home "that [he] had just returned from the [PFW] Center." Attached to

  Officer Miller apparently tried to continue questioning defendant at his home,
but defendant indicated he wished to speak with an attorney and any
interrogation ceased. This information was not shared with the jury.
defendant's certification was a copy of his "key tag" and a printout of his "check-

in history" at the PFW Center for September 22, 2017.

      Before the State called its final witness, Detective Nicole Spezio of the

Middlesex County Prosecutor's Office, the judge engaged counsel in an

extended charge conference. Defense counsel included the model jury charge

on alibi in his proposed final instructions, even though it appears from the record

that he had already indicated defendant would not testify after the State rested.

      Defense counsel objected to the prosecutor questioning the detective

about the alibi certification and attachments. He argued the records from the

PFW Center were hearsay, and the detective was not qualified to authenticate

them as business records. See N.J.R.E. 803(c)(6). The prosecutor argued the

certification and attachments were admissible pursuant to N.J.R.E. 803(b)(1).

            Prosecutor: I'm going to go under statement against
            party opponent. This is his entire statement that the
            State should be able to use. . . . [H]e adopts that
            statement when he says, "The certification that's
            attached thereto."

                  So adopting that statement of what's in that
            check-in history, Your Honor, is a hearsay exception
            here. And we should be allowed, through a detective,
            to put on a defendant's statement, against . . . party
            opponent's interest.

The judge asked defense counsel why the investigator should not be permitted

to testify because "you want the alibi charge. Right?"

            Defense counsel: Your Honor, I didn’t want the alibi.
            What I want is the Court to explain that [defendant's]
            not required – he's not required to put on any evidence. 4


            Judge: But when you put a defense, you . . . put in a


            Defense counsel: We are not putting on the [PFW
            Center] representative.

            Judge: But then – but how do you get that alibi?


            Defense counsel: Your Honor, I looked at the alibi as
            because at this point, Officer Miller has testified. The
            evidence is out through Officer Miller's testimony.


                  We are not putting on the [PFW] Center
            representative. . . . This statement itself is hearsay.
            The fact that we provided hearsay to . . . the prosecution
            does not make it not hearsay.


   See Model Jury Charge (Criminal), "Alibi" (revised May 12, 2008) ("The
defendant has neither the burden nor the duty to show that he/she was elsewhere
at the time and so could not have committed the offense.").
       If they want to read his statement, that's fine. But
to take it the next step of now we want to put on the
business records established by a business that is not
here to identify something and interpret it, because
that's what they're going to have to do next.


Judge: So I – I'm not understanding. You . . . asked me
to give you an alibi, and I'm down with giving you an
alibi because I don't want to stop you from having
something. Five-oh really didn't do much, but you did
everything for five-oh by giving them this printout. Do
you know what I'm saying, [defense counsel]? . . . I
want to look out for you, but then how can I . . . stop
the State from saying an alibi was propounded and the
State –

Defense counsel: Your Honor, . . . if we put on the
evidence of the alibi for the jury, I would agree with
you. But if we are not putting on the evidence in the
alibi, now the State wishes to take a certification that
was provided, along with documents. If we had
provided anything, how does that make it admissible?


     It's still a business record. . . . The State noticed
who the witness was that would testify to it. The State
chooses not to bring the witness.


      They can't put on . . . a detective to say . . . , "I
received this document from the prosecutor that the
defense had provided." There's no other way to do that,
other than –


                   – say I did an investigation I didn't do. So they're
            going to say that [defendant] provided this document
            and this is what it says. But that's still hearsay. They
            need to put on the expert. We gave them the
            information. We didn't give them the foundation.

            [(Emphasis added).]

      The judge disagreed. Without addressing defense counsel's argument that

the attachments to the certification were business records and Detective Spezio

could not authenticate them, the judge reasoned:

             [T]his witness has all the right in the world . . . to say
            . . . [d]uring the course of the investigation of this case,
            was it brought to your attention that [defendant] was
            . . . at that gym at such and such hour? Yeah. . . . [A]nd
            did you drive from that place to that place? Yes. And
            how long did it take?

                  Why . . . would that violate anyone's
            constitutional right? They were provided information
            from you, and they acted. They would have been
            jackasses not to do something. You know what I'm
            saying? So the – they're trying to block your little alibi.
            They had to – they have to try something. . . . [A]s a
            matter of fact, they'd better. I would expect that the
            State of New Jersey and every prosecutor in this State,
            who if they were told that there was an alibi and that
            the defendant was the wrong guy, that they would go
            out of their way and spend every resource available to
            confirm that they're prosecuting the right dude.

      When Detective Spezio testified, she identified defendant's alibi

certification, telling the jury it was received from defense counsel, and that it

said defendant was a member of the PFW Center. Detective Spezio identified

defendant's key scan tag from the copy that was attached to the certification.

Relying on computer assisted dispatch records, the detective identified when the

call for police assistance was made to the Plainsboro Police Department, and

identified defendant's "check-in history" at the PFW Center for September 22,

2017, a copy of which, as noted, was also attached to the alibi certification. All

three documents — defendant's certification, the copy of his key scan card, and

the record of its use at the PFW Center on September 22, 2017 — were published

to the jury at the prosecutor's request.

      Detective Spezio testified that the incident was reported to police at 3:23

p.m. and defendant checked in at the PFW Center at 3:29 p.m. She further

testified that it took six minutes to drive from the Can Do Fitness Center to the

PFW Center, and approximately sixteen minutes to travel from the PFW Center

to defendant's residence. On cross-examination, the detective acknowledged

that everything stated by defendant in his certification was true.

      In her closing argument, the prosecutor extensively referred to defendant's

alibi certification and the attached exhibits. She asked the jury to infer that

defendant drove to the PFW Center after the assault to "change the way he

looked" and "to clean himself up" after the assault.

      As noted, the jury acquitted defendant of both counts in the indictment.

When the court convened again several days later, it appears that defense

counsel made two arguments before the judge imposed sentence.5 We address

them both here and in the following section of this opinion because the

arguments are reiterated on appeal.

      For the first time, defense counsel cited State v. Gross, 

216 N.J. Super. 92

(App. Div. 1987), and argued it was error to permit the prosecutor to introduce

defendant's alibi certification and attachments because defendant did not testify.

The prosecutor responded by arguing "defense counsel was the one putting on

that information. . . . He didn't have to do a thing." She noted that our decision

in Gross found any error was harmless. See

id. at 96–97.

The judge never

addressed the issue. Before us, defendant argues that because he exercised his

right not to testify, it was reversible error for the judge to permit the prosecutor

to introduce his alibi certification and attached exhibits.

   The January 25, 2019 transcript reveals there were court proceedings the day
before. If they occurred on the record, appellant failed to provide us with any
transcript. The judge entered his guilty verdict on the two non-indictable
offenses immediately prior to imposing sentence without making any factual
      Rule 3:12-2(a) provides:

            If a defendant intends to rely in any way on an alibi,
            within [ten] days after a written demand by the
            prosecutor[,] the defendant shall furnish a signed alibi,
            stating the specific place or places at which the
            defendant claims to have been at the time of the alleged
            offense and the names and addresses of the witnesses
            upon whom the defendant intends to rely to establish
            such alibi.

In Gross, the defendant did not testify at trial; however, the prosecutor admitted

the defendant's alibi notice into evidence and, in summation, suggested that the

jury did not hear from the alibi witness because "she didn’t want to be a

perjurer.” 216 N.J. Super. at 95

. We noted that the Rule's requirement "is for

discovery purposes only, 'to avoid surprise at trial by the sudden introduction of

a factual claim which cannot be investigated unless the trial is recessed to that


Ibid. (quoting State v.


44 N.J. 268

, 272–73 (1965). "The rule 'is

not designed to compel a defendant to say anything' but rather 'requires the

specified pretrial disclosure if, but only if, the defendant plans to assert an


Id. at 95–96

(quoting State v. Angeleri, 

51 N.J. 382

, 384–85 (1968)).

      The State contends it never introduced the alibi documents into evidence;

that is clearly wrong, as already noted. The State further argues that defendant

in fact asserted alibi, the judge gave the jury the model charge on alibi and,

therefore, there was no error in permitting the State to rebut the alibi through

Detective Spezio's testimony. See, e.g., State v. Irving, 

114 N.J. 427

, 434 (1989)

("The Constitution does not protect a defendant from the consequences of a

defense he makes, nor assure him a right so to defend as to deny the State a

chance to check the truth of his position."); State v. Noble, 

398 N.J. Super. 574


588–89 (App. Div. 2008) (affirming prosecutor's right to cross-examine

defendant about contents of alibi notice). However, the State cites no case, and

our research reveals none, that permitted the prosecutor to use a defendant's alibi

statement as affirmative evidence when the defendant chose not to testify.

Simply put, the prosecutor's stated reason at trial supporting admission of

defendant's certification, i.e., it was a statement by a party opponent and

admissible pursuant to N.J.R.E. 803(b)(1) even if defendant did not testify, is

patently wrong.

      We might agree, however, that under these circumstances, admission of

defendant's alibi certification alone was harmless beyond a reasonable doubt.

As defense counsel himself noted, every statement made by defendant in the

actual certification was already before the jury via Officer Miller's testimony,

and Detective Spezio acknowledged that every fact in the certification was true.

Although not entirely clear from the extended colloquy cited above, defense

counsel appears to have consented "if [the prosecutor] wanted to read his" —

defendant's — "statement" to the jury.

      However, the prosecutor characterized defendant as having "adopted" the

other exhibits — defendant's key scan tag and the PFW Center print-out —

because they were attached to the certification. To be clear, once defendant

furnished this additional information, the State had every right to investigate and

directly rebut the alibi or explain, as the prosecutor did, why it was not truly an

alibi at all, because defendant had enough time to commit the offense and then

proceed to the PFW Center. Detective Spezio's testimony about how long it

took to drive from place to place, for example, was properly admitted.

      The documents that accompany defendant's certification, however, were

not admitted through independent proof adduced, for example, from witnesses

from the PFW Center who could have identified them as business records. See

N.J.R.E. 803(c)(6). 6   Rather, they were admitted through defendant's alibi

notice, even though defendant never testified. As a result, the prosecutor was

able to elicit from Detective Spezio that all the information was furnished by

defendant himself, and argue that defendant's own statements failed to

  As noted, defense counsel made this specific objection, but the judge never
addressed the issue.
substantiate a claim that he could not have committed the assault because he was

elsewhere when it occurred.

      Of course, the jury acquitted defendant, so we must consider whether the

improper admission of these documentary exhibits, portions of Detective

Spezio's testimony identifying them and their source, and the inferences urged

by the prosecutor prejudiced the judge's evaluation of the evidence against

defendant. Unfortunately, we have no way of telling, because the judge failed

to make any factual findings when he rendered his guilty verdicts.

      Therefore, we reverse defendant's convictions and remand the matter to

the trial court.   The judge may not consider the documents attached to

defendant's certification, those portions of Detective Spezio's testimony that led

to their admission in evidence and any references in her testimony to the

exhibits. The judge shall make factual findings and draw legal conclusions from

the balance of the trial evidence and enter appropriate verdicts on the two

offenses of simple assault and harassment. We do not retain jurisdiction.


      The arguments raised in Points II and III are related and must be addressed

for the sake of completeness. Defendant contends it was error for the judge not

to submit the simple assault offense to the jury because it is a lesser-included

offense of burglary. He also argues that because the jury acquitted him of

second-degree burglary, the judge was collaterally estopped from finding

defendant guilty of simple assault or harassment, which were both based on the

alleged assault of Sally. See N.J.S.A. 2C:33-4(b) (defining harassment as the

"striking, kicking, shoving, or other offensive touching" of another "with

purpose to harass").

      At the charge conference, defendant asked the judge to charge simple

assault and trespass as lesser-included offenses of burglary. The prosecutor

objected, arguing neither was a lesser-included offense. Defense counsel did

not, however, object thereafter when the judge indicated he would render

verdicts on the simple assault and harassment charge without advising the jury

of his findings.

      The judge concluded that State v. Muniz compelled him to be the trier of

fact with respect to the two non-indictable offenses charged in a separate


118 N.J. 319

, 322–23 (1990). However, in State v. Miller, we held

that "where the proofs presented support inclusion of a disorderly persons

offense as a lesser-included offense of an indictable offense, the lesser-included

disorderly persons offense must be submitted for a jury determination ." 

382 N.J. Super. 494

, 501 (App. Div. 2006) (citing N.J.S.A. 2C:1-8(e)). We noted

that the State's reliance on Muniz was mistaken, because "the prosecution of

offenses under the Criminal Code, including disorderly offenses, is both

distinguishable and separate from motor vehicle violations."

Id. at 502


Muniz, 118 N.J. at 332


      The judge also cited Rule 3:15-3(a)(2), which authorizes "the Superior

Court judge" to "sit as a municipal court judge on [a] complaint" for non-

indictable offenses "[r]egardless of whether a jury sits as the finder of facts with

respect to the criminal offense," but not if "the complaint charges [a non-

indictable] offense that must be submitted to the jury in accordance with the

provisions of N.J.S.A. 2C:1-8(e)[.]" The issue, therefore, is whether simple

assault and harassment premised upon a striking of the victim are lesser-

included offenses of burglary.

      An offense will be considered a lesser-included offense in two

circumstances: if "the proof required to establish a greater offense is also

sufficient to establish every element of a lesser offense," or "where two offenses

are the same but a lesser degree of culpability is required to establish the lesser

offense." State v. Thomas, 

187 N.J. 119

, 129–30 (2006) (citing State v. Muniz,

228, N.J. Super. 492, 496 (App. Div. 1988)). In this case, unlike Miller, neither

simple assault nor harassment are lesser-included offenses of burglary.

      The elements of burglary are unauthorized "entry into a structure with the

purpose of committing an offense." State v. Marquez, 

277 N.J. Super. 162

, 168

(App. Div. 1994). "Burglary requires only an entry 'with purpose to commit an

offense,' irrespective of whether an offense is committed." State v. Mangrella,

214 N.J. Super. 437

, 441 (App. Div. 1986) (quoting N.J.S.A. 2C:18-2(a)) (citing

State v. Pyron, 

202 N.J. Super. 502

, 504–05 (App. Div. 1985)). In short, since

one may be convicted of burglary without committing a simple assault or

harassment, the greater crime does not include all the elements of the lesser


      The more troublesome question is whether the judge erred by not charging

the jury with the elements of simple assault and requiring it to determine

defendant's guilt because the simple assault was an element of the second-degree

burglary for which defendant stood indicted. Generally speaking, "facts [that]

will aggravate the crime of which a defendant is accused and enhance the

punishment to which he will be subject are said to be an 'element' of the

offense[.]" State v. Rodriguez, 

234 N.J. Super. 298

, 304–05 (App. Div. 1989)

(quoting N.J.S.A. 2C:1-14(h)). Clearly, in order to have found defendant guilty

of second-degree burglary, i.e., he inflicted bodily injury on Sally while burgling

her car, the jury would have had to find the State proved all the elements of

simple assault.

      However, if the actor commits "the intended offense" that elevates a

burglary to a second-degree crime, "the offense itself is separately punishable."

Pyron, 202 N.J. Super. at 504

. We have rejected strictly construing an offense

that raises the degree of another crime as a lesser included offense or element of

the greater crime when it is clear that the intent of the Code was to provide

separate punishment upon conviction of both offenses.           See, e.g., State v.


227 N.J. Super. 51

, 66 (App. Div. 1988) (rejecting merger of second -

degree burglary into attempted aggravated sexual assault, even though burglary

was "statutory element of aggravated sexual assault").

      Moreover, the ratio decidendi for requiring instructions on a lesser-

included offense is to avoid "the injustice of an 'all-or-nothing' presentation of

a criminal offense to a jury or fact-finder with respect to a defendant who may

in fact be guilty of only a lesser offense that is not charged is that the defendant

will be found guilty of a crime he did not commit or he will be acquitted of a

crime he did commit." 

Muniz, 118 N.J. at 327

(citing State v. Sinclair, 

49 N.J. 525

, 543 (1967)). "[C]oncerns surrounding the possibility of an all-or-nothing

verdict . . . would generally counsel the disposition of all available charges by

the same trier of fact."

Id. at 332.

      Here, however, the judge followed the model jury charge for burglary.

Model Jury Charge (Criminal), "Burglary in the Second Degree (N.J.S.A.

2C:18-2b)" (rev. Mar. 14, 2016). The model charge first provides instructions

on third-degree burglary and specifically tells the jury that it must first find the

State proved all the elements of burglary before considering the "additi onal

element" that makes burglary a second-degree crime.

Id. at 3.

      In this case, the verdict sheet required the jury to first determine

defendant's guilt as to third-degree burglary and only proceed further to consider

second-degree burglary – defendant caused bodily injury to Sally in the course

of the burglary – if it found defendant guilty of burglary. The jury unanimously

answered the first interrogatory in the negative.       In other words, it never

considered whether defendant committed a simple assault and never faced the

possibility of an "all or nothing" verdict. Under the circumstances, the failure

to charge the jury on simple assault was not reversible error.

      For the same reason, we reject defendant's collateral estoppel argument.

Defendant claims that the jury's "acquittal" on the charge of second-degree

burglary collaterally estopped the judge from finding defendant guilty of the

alleged underlying offenses of simple assault and harassment.

      We have said that for collateral estoppel to apply in a criminal proceeding,

the defendant must establish that:

                (1) the issue to be precluded is identical to the issue
                decided in the prior proceeding; (2) the issue was
                actually litigated in the prior proceeding; (3) the court
                in the prior proceeding issued a final judgment on the
                merits; (4) the determination of the issue was essential
                to the prior judgment; and (5) the party against whom
                the doctrine is asserted was a party to or in privity with
                a party to the earlier proceeding.

                [State v. Brown, 

394 N.J. Super. 492

, 502 (App. Div.
                2007) (quoting First Union Nat'l Bank v. Penn Salem
                Marina, Inc., 

190 N.J. 342

, 352 (2007)).]

As noted, the jury never reached the question of defendant's guilt on the

underlying assault that the State alleged elevated the burglary to a second-degree

crime.   The determination of defendant's guilt of those offenses was not

"essential" to the jury's verdict acquitting defendant of burglary.

      We reverse defendant's convictions and remand the matter to the trial

court for further proceedings consistent with this opinion. We do not retain



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