SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2504-18

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

VANCLEVE ASHLEY,

Defendant-Appellant.

_______________________

Argued March 1, 2021 – Decided May 7, 2021

Before Judges Fasciale and Rothstadt.

On appeal from the Superior Court of New Jersey, Law 

Division, Monmouth County, Indictment No. 03-06-

1233.

John Vincent Saykanic, Designated Counsel, argued 

the cause for appellant (Joseph E. Krakora, Public 

Defender, attorney; John Vincent Saykanic, on the 

brief).

Monica do Outeiro, Assistant Prosecutor, argued the 

cause for respondent (Christopher J. Gramiccioni, 

Monmouth County Prosecutor, attorney; Monica do 

Outeiro, of counsel and on the brief).

NOT FOR PUBLICATION WITHOUT THE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.
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Appellant filed a pro se supplemental brief.

PER CURIAM

In State v. Ashley, 443 N.J. Super. 10, 13, 16-21, 24 (App. Div. 2016), we 

vacated defendant Vancleve Ashley's1conviction that was entered after he pled 

guilty to one count of second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1) 

and we remanded for a new trial. After our remand, defendant filed two 

unsuccessful pre-trial motions, one seeking to disqualify the Monmouth County 

Prosecutor's Office (MCPO) under N.J.S.A. 52:17B-107(a), to disqualify the 

Superior Court judges sitting in Monmouth County from any involvement in his 

case, and to have the matter transferred under Rule 3:14-2 from Monmouth 

County to Essex County, and the other to dismiss the indictment with prejudice. 

He later pled guilty again to aggravated assault and was sentenced to time 

served.

2

 

Defendant now appeals from his conviction, challenging the January 11, 

2018 order denying his motion for disqualification and change of venue and the 

1

 Defendant is now known as Qawee Ali. 

2

 The sentence was made concurrent to a federal sentence defendant was serving 

for an unrelated offense. 
3

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October 12, 2018 denial of his motion to dismiss the indictment. On appeal, 

defendant raises the following specific arguments:

POINT I

THE TRIAL COURT ABUSED ITS DISCRETION IN 

DENYING THE MOTION TO DISMISS THE 

INDICTMENT WITH PREJUDICE AS THE 

MONMOUTH COUNTY PROSECUTOR'S OFFICE 

(MCPO) ILLEGALLY INTRUDED INTO THE 

ATTORNEY-CLIENT RELATIONSHIP TO SUCH 

AN EXTENT THAT THE ATTORNEY-CLIENT 

RELATIONSHIP WAS DE[S]TROYED AND 

DEFENDANT ASHLEY'S TRIAL STRATEGY 

(ALIBI AND MISTAKEN IDENTITY) WAS 

REVEALED; DEFENDANT ASHLEY'S SIXTH 

AMENDMENT RIGHT TO EFFECTIVE COUNSEL 

AND FOURTEENTH AMENDMENT RIGHT TO 

DUE PROCESS OF LAW WERE VIOLATED 

UNDER BOTH THE UNITED STATES AND NEW 

JERSEY CONSTITUTIONS.

POINT II

THE TRIAL COURT ABUSED ITS DISCRETION IN 

DENYING THE MOTION TO DISMISS THE 

INDICTMENT WITH PREJUDICE AS THE GRAND 

JURY PRESENTATION WAS FUNDAMENTALLY 

UNFAIR AS THE GRAND JURORS HEARD FALSE, 

INACCURATE AND MISLEADING EVIDENCE 

THAT WAS PRESENTED BY THE STATE IN 

VIOLATION OF DEFENDANT'S RIGHT TO DUE 

PROCESS OF LAW UNDER THE FIFTH AND 

FOURTEENTH AMENDMENTS TO THE UNITED 

STATES CONSTITUTION AND UNDER THE NEW 

JERSEY CONSTITUTION.
4

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POINT III

THE TRIAL COURT ABUSED ITS DISCRETION IN 

DENYING THE MOTION TO DISMISS THE 

INDICTMENT WITH PREJUDICE DUE TO THE 

EXCLUSIVE RELIANCE UPON HEARSAY AND 

DOUBLE HEARSAY IN THE GRAND JURY 

PRESENTATION IN VIOLATION OF 

DEFENDANT'S FIFTH AMENDMENT RIGHT TO A 

FAIR GRAND JURY AND FOURTEENTH 

AMENDMENT RIGHT TO DUE PROCESS AND 

RIGHTS UNDER THE NEW JERSEY STATE 

CONSTITUTION.

Defendant also filed a pro se supplemental brief in which he raises the following 

argument:

POINT I

THE TRIAL COURT ABUSED ITS DISCRETION BY 

1) DENYING THE MOTION TO RECUSE THE 

MONMOUTH COUNTY JUDICIARY; 2) DENYING 

THE MOTION TO DISQUALIFY THE MONMOUTH 

COUNTY PROSECUTOR'S OFFICE (MCPO); AND 

3) DENYING THE MOTION FOR A CHANGE OF 

VENUE UNDER R. 3:14-2 AS A FAIR AND 

IMPARTIAL TRIAL (OR PRETRIAL HEARINGS) 

COULD NOT BE HAD IN MONMOUTH COUNTY 

IN VIOLATION OF DEFENDANT'S FEDERAL AND 

STATE CONSTITUTIONAL RIGHT TO DUE 

PROCESS AND A FAIR TRIAL (U.S. CONST. 

AMEND. XIV; N.J. CONST. ART. 1, PARA. 10). 

We are not persuaded by these contentions. We affirm. 
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I.

A.

The facts pertinent to defendant's motions are summarized from the record 

as follows. On June 21, 2002, two men using the names "Frank White" and "Big 

Bruce Smith" visited the law offices of Peter Paras in Red Bank. Later that same 

day, as he was leaving his office, Paras was struck, according to witnesses, by a 

blue Jeep Liberty with a license plate number MME74Z that subsequently fled 

the scene. Soon thereafter, the Red Bank Police Department suspected 

defendant was involved in the assault on Paras based upon information gathered 

from witnesses who stated that the vehicle "was operated by a black male driver 

with a black male passenger," who were later identified as the men who had 

been in Paras's office, and from the New Jersey Motor Vehicle Commission's 

records that revealed that the vehicle used to strike Paras was leased to Tina 

DeStefano, defendant's girlfriend. 

The police spoke with Raimaine York who admitted to accompanying 

defendant to Paras's office as "Big Bruce Smith." According to York, defendant 

told him he "had to see his lawyer" because the lawyer "needed" to be 

"intimidate[d] . . . because he fucked up a case." York told police that once the 

two were in Paras's office, he realized it "wasn't [defendant's] attorney and it 
6

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was something bigger than [he] thought it was." He also told police that after 

the two left Paras's office, defendant waited in the driver seat of the Jeep for 

Paras to leave before accelerating to hit Paras with the vehicle as he left the 

office. 

The police also learned that Nicholas Lucarella, an unsatisfied 

matrimonial client of Paras's,3 had paid defendant $4,000 to assault but "not to

kill" Paras, and that Lucarella met defendant through Edward Roger Caruso at a 

gym in Lodi. Caruso was an ex-Newark police officer who was then working 

as a private investigator. Caruso met defendant while performing investigative 

services for attorney Anthony Fusco in a different criminal matter involving

defendant. The two met in Fusco's office where they "had an occasion to strike 

up a friendship and spent time either in . . . Fusco's office or on occasion to go 

out and have a bit[e] to eat and then return to Fusco's office." 

At some point a few days after the assault, Caruso met with defendant and

advised him that he should retain counsel in response to defendant telling Caruso 

that DeStefano's vehicle had been stolen and used in an assault, but defendant 

indicated that he did not think that would be necessary. On another occasion

3

 According to the State, Paras represented Lucarella in a post-judgment custody 

dispute that did not end in Lucarella's favor.
7

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shortly after the assault, Caruso happened to meet defendant near a social club 

the latter frequented where defendant informed Caruso that he was going to Las 

Vegas, Nevada on vacation and would talk to a lawyer when he returned. 

Before DeStefano left on vacation with defendant, on June 27, 2002, 

police took a statement from her, at which time they informed her that they 

wanted to speak to defendant. The next day, defendant and DeStefano traveled 

to Las Vegas, Nevada. A few days later, Las Vegas authorities arrested 

defendant and DeStefano on New Jersey criminal warrants. 

While in custody in Las Vegas, defendant called Caruso seeking his help 

in obtaining a lawyer. Defendant asked Caruso to contact an attorney who was

representing defendant in an unrelated homicide case, but that lawyer declined 

to represent defendant in this matter. Defendant ultimately retained Marc A. 

Calello in July 2002 at Caruso's suggestion. Thereafter, Caruso was engaged to 

assist Calello with defendant's defense beginning on September 12, 2002. 

Caruso gave statements to the MCPO on November 25, 2002, and 

February 14, 2003,4in which he described his relationship with defendant and 

Lucarella and informed investigators of a payment Lucarella made to defendant,

4

 According to defendant, Caruso was represented during his statements to 

police by an attorney, Joseph Ferrante, who had been retained by Fusco for 

Caruso. 
8

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which Caruso witnessed. These statements were read to the grand jury on June 

2, 2003. 

At the time Caruso provided his statements to the MCPO, Fusco was 

representing Caruso's son in an unrelated criminal matter. Six years later, during 

Lucarella's trial for his role in Paras's assault, Caruso recanted a number of the 

statements he gave to police in 2002 and 2003, claiming that he gave them at 

Fusco's direction in exchange for Fusco's promise to use his influence to secure 

a favorable sentence for Caruso's son.5

On June 23, 2003, a Monmouth County Grand Jury indicted defendant, 

charging him with one count of first-degree attempted murder contrary to 

N.J.S.A. 2C:5-1 and N.J.S.A. 2C:11-3; one count of first-degree conspiracy to 

commit murder contrary to N.J.S.A. 2C:5-2(a)(1) and/or (2) and N.J.S.A. 2C:11-

3; and one count of second-degree aggravated assault, contrary to N.J.S.A. 

2C:12-1(b)(1). 

5

 According to defendant, Fusco, who had admitted to having a relationship 

with Lucarella’s ex-wife, feared he would be prosecuted in connection with 

Paras's assault and asked Caruso to lie to the grand jury in order to get Fusco

"off the hook."
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B.

After our remand, defendant filed his motion to change venue and to 

disqualify the MCPO, contending that members of that office, against which he 

had filed a civil suit, engaged in prosecutorial misconduct by, among other acts, 

taking a statement from Caruso who that office knew to be an investigator hired 

by defendant's attorney to assist in his defense. Moreover, he claimed that the 

judge assigned to the case was biased and conspired against him based on the 

judge's former position as the county sheriff. 

Judge Lisa Thornton considered the motion and the parties' oral arguments 

on January 20, 2017, and May 3, 2017. On January 11, 2018, Judge Thornton 

issued an order denying defendant's motion and attached a twenty-three-page 

written decision in which she analyzed five "incidents" defendant cited to in 

support of his argument to disqualify the MCPO and to transfer venue because 

no Monmouth County judge could decide the case impartially. The judge stated 

the following: 

(1) he was allegedly assaulted over ten years ago in the 

Monmouth County Correctional Institution (MCCI) by 

officers that were sympathetic to attorney Anthony 

Fusco. He claims the officers feared defendant would 

implicate Mr. Fusco in the assault on Mr. Paras; (2) his 

conviction was vacated on appeal; (3) his civil case 

against the MCPO and the MCCI was dismissed by a 
10 A-2504-18

judge in the Monmouth County Civil Division; (4) his 

case was originally assigned to [a judge], who was the 

Monmouth County Sheriff when defendant was 

allegedly assaulted by officers at MCCI; (5) he was 

questioned by corrections officers at a NJ Department 

of Corrections prison, after he lost control of his temper 

in [the other judge's] courtroom during a court 

proceeding.

Judge Thornton concluded that no "reasonable fully informed person 

would . . . conclude that no judge in Monmouth County could be fair and 

impartial." She noted that defendant had provided no credible evidence that he 

had been assaulted by officers at MCCI, and that even if the assertion were true, 

there was "no reason to conclude" that the entire Monmouth judiciary would be 

prejudiced against defendant. She further found that the reversal of his 

conviction and the assignment of his case to the judge who was the former 

sheriff were not evidence of bias against him, noting that the other Law Division 

judges involved in his case demonstrated no "bias or animosity" against 

defendant and that when the matter had been assigned to the former sheriff, that 

judge was unaware of the lawsuit filed by defendant against MCCI during his 

tenure as the Monmouth County Sheriff. 

Judge Thornton also explained that when this potential conflict was 

disclosed to the court, "the matter was transferred to . . . the Presiding Judge of 

the Criminal Division" in Monmouth County. She concluded that defendant had 
11 A-2504-18

failed to demonstrate that the newly assigned judge would not be impartial and 

noted that he had not yet been appointed to the bench at the time of defendant's 

arrest or alleged assault and had no prior involvement with his case. 

Judge Thornton further found no merit to defendant's argument that the 

Monmouth judiciary should be recused because a judge in the Civil Division 

dismissed his lawsuit against the MCPO, MCCI, Fusco and Caruso. She noted 

that defendant failed to allege that the judge there erred in her decision and 

added that there was "no evidence that her decision was based on bias or malice 

against defendant." 

Finally, Judge Thornton discussed an incident that occurred before the 

judge who was the former sheriff in which defendant, when advised that the 

judge would not be entertaining his motion to dismiss the indictment on that 

date, raised his voice and stated, "I know who you is. You were the sheriff's 

officer . . . . I know who the fuck you is. No, no you stop. Bastard. This ain't 

no fucking damn valid indictment. This ain't no valid indictment. I told 'em I 

don't want no goddamn deal." Following this incident, officers at a State prison 

facility questioned him about his behavior. Judge Thornton concluded there was 

nothing unusual about the officers' conduct in this situation and expressed that 
12 A-2504-18

it was "not clear why the court should consider this incident as evidence of bias 

on the part of the court." 

Summarizing her findings as to defendant's claim that his case should be 

transferred away from Monmouth County, Judge Thornton stated: 

Unlike the facts in [State v. Dalal, 221 N.J. 601 

(2015)], there is simply no basis to conclude that 

recusal is appropriate because a fully informed person 

would doubt the impartiality of the Monmouth County 

judiciary. On the contrary, defendant's moving papers 

indicate his request is motivated by his desire to "forum 

shop." He candidly admits that he would like the case 

moved to Essex County to be closer to his family.[6] 

Apparently, the fact that Mr. Paras, the victim of the 

assault, and his family would be inconvenienced by 

travelling [sic] to Essex County is of no concern to 

defendant. 

Judge Thornton also found there was no reason for the MCPO to be 

disqualified, as there was "no evidence of 'widespread misconduct' or any other 

disqualifying conflict contemplated by the [c]ourt in [State v. Harvey, 176 N.J. 

522 (2003)]." She found no support for defendant's argument that the MCPO 

violated his attorney-client privilege when they interviewed Caruso and 

allegedly received statements from him that both "implicated [defendant] and 

6

 In his motion, defendant sought a change in venue to Essex County so it would 

be more convenient for his family and counsel. 
13 A-2504-18

revealed his trial strategy." She concluded that defendant had failed to satisfy 

his burden in demonstrating the statements were made during a "professional 

consultation" and noted that most of the communications were made before 

Calello had been retained as counsel and "had nothing to do with the attorneyclient relationship." 

Having said that, the judge described two conversations disclosed by 

Caruso which could have been privileged communications. The first involved 

Caruso's recruitment by Calello to perform investigatory actions with respect to 

a possible alibi for defendant. Following defendant's arrest in Las Vegas, 

Caruso advised defendant to schedule an appointment with Calello to discuss 

Calello's representation of defendant. Caruso informed an investigator that he 

"assumed the meeting took place because 'Mr. Calello called [him] in requesting 

certain investigator actions with respect to taking statements regarding a 

possible alibi.'" Judge Thornton stated that the communication could be 

considered "privileged" because "[i]t was a professional conversation between 

an attorney and his agent regarding tasks to be completed for defendant's 

defense." However, she concluded that defendant "was not prejudiced by this 

revelation" and had "failed to present any argument that he was." She explained 
14 A-2504-18

that had defendant intended to assert an alibi as a defense, he would have been 

required to provide that information to the MCPO pursuant to Rule 3:12-2. 

The second conversation that could have been privileged was between 

Caruso and defendant when Caruso visited defendant in jail. While giving a 

second statement at the MCPO on February 14, 2003, Caruso was asked if he 

ever had conversations with defendant "concerning his idea of what the proofs 

of this case were." Caruso told the MCPO that defendant informed him "that 

the[ authorities] were looking for a white man, and . . . you can take me for a lot 

of things, but you can never take me for a white man." 

Judge Thornton described the question as "inappropriate" and noted that 

the investigator "should have known that the question could have elicited

responses that breached the attorney-client privilege." She reasoned that 

although the communication could have been privileged, as Caruso was likely 

"acting in his capacity as [defendant's] investigator," there was again no 

prejudice to defendant because of this revelation. She noted that there was "no 

indication in the record that law enforcement ever suspected Caucasian men 

were driving the Jeep Liberty." Judge Thornton therefore concluded that this 

statement did not demonstrate the "widespread misconduct" or a "disqualifying 
15 A-2504-18

conflict" that defendant needed to show to have the MCPO disqualified, and for 

those reasons, she denied defendant's motion. 

C.

Defendant's motion to dismiss the indictment was heard by Judge Dennis 

R. O'Brien, who denied the motion on October 12, 2018, and set forth his reasons 

in a ten-page rider attached to his order. Judge O'Brien stated that defendant 

argued for the indictment's dismissal with prejudice for "three main reasons": 

(1) because "the MCPO improperly intruded into his attorney-client 

relationship, in violation of his Sixth Amendment right to counsel, by 

interviewing Caruso, a private investigator retained by [d]efendant's counsel"; 

(2) because "the presentation to the Grand Jury was fundamentally unfair 

because the Grand Jurors heard inaccurate and misleading evidence and because 

the State did not present the Grand Jury with exculpatory evidence"; and (3) 

"because the State exclusively relied on hearsay and double hearsay during the 

Grand Jury presentment, violating the [d]efendant's Fifth Amendment right to a 

fair Grand Jury." 

Judge O'Brien found that the first issue raised by defendant was the "same 

allegation" that defendant had made in his first motion heard by Judge Thornton 

and that the issue had been "fully and fairly litigated." For that reason, Judge 
16 A-2504-18

O'Brien concluded that the "law of the case" doctrine applied to defendant's 

arguments concerning the MCPO's alleged intrusion on the attorney-client 

privilege, especially since defendant did not argue that the proceedings before 

Judge Thornton were "unfair or that the interests of justice otherwise require [d]

th[e] motion to be re-litigated." 

The judge then found defendant's second contention, that the State misled 

the grand jury by presenting Caruso's statements that were later recanted, to be 

without merit. Judge O'Brien observed that the recantation did not occur until 

"six years, four months, and twenty-eight days after" Caruso's original 

statements had been presented to the grand jury and the MCPO had no "actual 

knowledge" of it at the time of defendant's indictment. The judge also noted 

that even if the State had somehow known that Caruso would recant his 

statements six years after giving them, Caruso's recantation was not clearly 

exculpatory, as the grand jury would then have to decide whether his initial 

statement or recantation were truthful. 

Finally, Judge O'Brien addressed defendant's argument that the indictment 

should be dismissed because the State relied exclusively on hearsay and double 

hearsay evidence. The judge rejected defendant's reliance upon State v. 

Chandler, 98 N.J. Super. 241 (Law Div. 1967) and State v. Costa, 109 N.J. 
17 A-2504-18

Super. 243 (Law Div. 1970) for the proposition that the State cannot rely on 

hearsay evidence during grand jury presentment, because neither case was still 

good law, nor were either of them binding authority. To the contrary, Judge 

O'Brien explained that a grand jury "may return an indictment based on hearsay 

testimony or other evidence which may not be legally competent or admissible 

at trial" and further noted that the New Jersey Rules of Evidence expressly 

provide for the relaxation of the evidence rules in grand jury proceedings. 

Thereafter, defendant pled guilty again to the one count of aggravated 

assault,7 while preserving his ability to appeal the denial of his pre-trial motions. 

On January 4, 2019, Judge O'Brien sentenced defendant in accordance with the 

terms of a negotiated plea agreement. This appeal followed. 

II.

We review a trial court's denial of a motion to dismiss an indictment for 

abuse of discretion, State v. Bell, 241 N.J. 552, 561 (2020) (quoting State v. 

Twiggs, 233 N.J. 513, 44 (2018)), and we apply the same standard in reviewing 

denials of motions to change venue under Rule 3:14-2, State v. Biegenwald, 106 

N.J. 13, 33, 36 (1987), State v. Belton, 60 N.J. 103, 107 (1972), or to recuse a 

7

 In doing so, defendant provided a factual basis for his plea—acknowledging 

that he had been paid money to assault Paras, that he had enlisted York's help to 

do so, and that they had used DeStefano's Jeep to strike Paras. 
18 A-2504-18

party or judge. Goldfarb v. Solimine, 460 N.J. Super. 22, 30 (App. Div. 2019). 

We will find an abuse of discretion only where "a decision is 'made without a 

rational explanation, inexplicably departed from established policies, or rested 

on an impermissible basis.'" State v. R.Y., 242 N.J. 48, 65 (2020) (quoting Flagg 

v. Essex Cnty. Prosecutor, 171 N.J. 561, 571 (2002)). When a trial court's 

decision turns on a legal question, we review that determination de novo, 

without deference to the trial court's interpretation. Twiggs, 233 N.J. at 532.

III.

A.

Guiding our review of the denial of a motion to dismiss an indictment is 

the principle that "[o]nce a grand jury returns an indictment, a court should 

dismiss that indictment 'only on the clearest and plainest ground, and only when 

the indictment is manifestly deficient or palpably defective.'" Bell, 241 N.J. at 

560 (quoting Twiggs, 233 N.J. at 531-32). Dismissal of an indictment is a "last 

resort because the public interest, the rights of victims and the integrity of the 

criminal justice system are at stake." State v. Williams, 441 N.J. Super. 266, 

272 (App. Div. 2015) (quoting State v. Ruffin, 371 N.J. Super. 371, 384 (App. 

Div. 2004)).
19 A-2504-18

Where a motion to dismiss is based upon prosecutorial misconduct before 

the grand jury, dismissal is not required "[u]nless the prosecutor's 

misconduct . . . is extreme and clearly infringes upon the [grand] jury's decisionmaking function." Bell, 241 N.J. at 560 (alterations in original) (quoting State 

v. Murphy, 110 N.J. 20, 35 (1988)). Dismissal is only appropriate where "the 

prosecutor's conduct 'impinge[s] on a grand jury's independence and improperly 

influence[s] its determination.'" Id. at 561 (alterations in original) (quoting State 

v. Francis, 191 N.J. 571, 587 (2007)).

B.

The gist of defendant's argument on appeal is that prior to the subject 

assault, he had an ongoing professional relationship with Caruso such that 

anything he discussed with Caruso was subject to the attorney-client privilege. 

Specifically, defendant argues his attorney-client privilege and, by extension,

his right to effective counsel were violated when the MCPO improperly 

interviewed Caruso in November 2002 and February 2003—allegedly revealing 

his trial strategy in the process—while knowing that Caruso had been retained 
20 A-2504-18

as an investigator by defendant's counsel on September 12, 2002. Accordingly, 

he argues this improper questioning "mandates" dismissal of the indictment. 8

Among the examples of revealed conversations upon which defendant 

asserts a violation the attorney-client privilege are: Caruso's statement that he 

was present when defendant purchased or leased a blue Jeep Liberty; Caruso 

telling the MCPO that he was contacted by defendant "[a] day or two after the 

incident" at which point he advised defendant "to get an attorney immediately"; 

a conversation following defendant's arrest in Las Vegas in which Caruso told 

defendant to "set up an appointment with Mr. Calello"; Caruso's statement that 

he "assumed that [the meeting] took place [because] Mr. Calello called [him] in 

requesting certain investigator actions with respect to taking statements 

regarding a possible alibi"; and defendant's statements that he liked Lucarella,

was "gonna do [Lucarella] a favor," and that he planned to "rough[] up" an 

attorney for Lucarella. He also notes that authorities recorded a call between 

8

 At several points, defendant states that the MCPO did not consider Caruso to 

be criminally involved in the attack on Paras in order to avoid a waiver of the 

attorney-client privilege pursuant to the "crime-fraud" exception. This 

exception, which provides that "communication[s] in the course of legal service 

sought or obtained in aid of the commission of a crime or a fraud" are not 

protected by attorney-client privilege, N.J.R.E. 504(2)(a), was not relied on by 

either Judge Thornton or Judge O'Brien, nor by the State in the instant appeal. 
21 A-2504-18

Caruso, defendant, and DeStefano when the latter two were arrested in Las 

Vegas.

Defendant further points to Caruso's February 2003 statement to the 

MCPO wherein investigators asked Caruso whether he ever had "any 

conversations with [defendant] regarding his idea of what the proofs of this case 

were," to which Caruso responded as follows:

He told me that he received word that they were looking 

for a bald shaved head black man who was very, very 

big. He said to me do I look big to you, I’m an average 

size guy. I had occasion to meet [defendant] in Garfield 

near a social club that he would frequent. He was 

standing on the corner with his brother when I arrived. 

His brother is his identical twin and they look similar, 

not exactly but similar. I told [defendant] that from 

what I could glean from the information he gave me that 

this case is strictly an identification case, and I pointed 

over to his twin brother and said maybe it was him. . . . 

Later on I think on one of my jail visits to him, he told 

me that they were looking for a white man, and he said 

you can take me for a lot of things, but you can never 

take me for a white man.

Defendant asserts that this inappropriate questioning by the MCPO 

revealed defendant's intent to use identity and alibi as trial strategies. 

Accordingly, defendant argues that taking the above statements and later 

presenting them to the grand jury constituted prosecutorial misconduct 

warranting the dismissal of his indictment. We disagree.
22 A-2504-18

C.

We conclude that defendant's contentions about the grand jury being 

exposed to information secured through the violation of his privileged 

communication with his attorney or his attorney's investigator are without any 

merit. While defendant correctly asserts that the attorney-client privilege exists 

to protect "communications between a client and his attorney," and "extends to 

consultations with third parties whose presence and advice are necessary to the 

legal representation," O'Boyle v. Borough of Longport, 218 N.J. 168, 185 

(2014), he fails to recognize that the privilege does not protect all 

communications. Rather, the privilege only protects communications made 

between a "lawyer and his client in the course of that relationship and in 

professional confidence." Tractenberg v. Twp. of W. Orange, 416 N.J. Super. 

354, 375 (App. Div. 2010) (quoting N.J.R.E. 504(1)). Regardless of whether 

the allegedly protected communication is made to a lawyer or the lawyer's agent, 

the "sine qua non of the privilege is that the client has consulted the lawyer in 

the latter's capacity as an attorney." L.J. v. J.B., 150 N.J. Super. 373, 377 (App. 

Div. 1977). See also Fellerman v. Bradley, 99 N.J. 493, 499 (1985) ("For a 

communication to be privileged it must initially be expressed . . . in conjunction 

with seeking or receiving legal advice from [an] attorney . . . ."). "The burden 
23 A-2504-18

of proof" to establish that a communication is protected by the attorney-client 

privilege rests with "the person . . . asserting the privilege." Hedden v. Kean 

Univ., 434 N.J. Super. 1, 12 (App. Div. 2013).

Accordingly, defendant had the burden of establishing that 

communications between he and his attorney—or he and his attorney's agent—

were made within the context of the attorney-client relationship, not just that a 

"professional relationship" existed. Ibid. Defendant cites a number of 

interactions between himself and Caruso which were revealed to the MCPO and 

which implicate defendant in the assault on Paras; the revelation of which he 

asserts violated his attorney-client privilege—e.g., Caruso's statement that he 

was present when defendant purchased or leased a blue Jeep Liberty, Caruso's 

introduction of defendant to Lucarella, defendant's statement that he planned to 

"rough[] up" an attorney for Lucarella, defendant's request that Caruso put him 

in touch with an attorney, and defendant's statement to Caruso at a Garfield 

social club days after the incident that the authorities were looking for a black 

man in connection with the assault. However, these interactions all occurred 

well before Caruso's retention by Calello to work on defendant's case. Rather, 

each instance arose from the personal relationship that existed between Caruso 

and defendant. Such a relationship does not render all communications between 
24 A-2504-18

them consultations with an agent "in the latter's capacity as an [agent of an] 

attorney," L.J., 150 N.J. Super. at 377, and is insufficient to sustain defendant's

burden to afford these conversations protection under the attorney-client 

privilege. Accordingly, Judge Thornton did not err in finding that the privilege 

did not apply to those conversations.

With respect to the two instances in which Judge Thornton found the 

attorney-client privilege to apply, she correctly found that neither warranted the 

recusal of the MCPO because neither instance prejudiced defendant. As to 

defendant's assertion that his defense of alibi was revealed when Caruso 

informed investigators that "Calello called [him] in requesting certain 

investigator actions with respect to taking statements regarding a possible alibi,"

Judge Thornton appropriately noted that information would have had to have 

been provided to the prosecutor's office in discovery anyway if defendant sought 

to establish an alibi defense. Where the defense is asserted, defendant is 

obligated by Rule 3:12-2 to advise the State pretrial as to the "place or places at 

which [he] 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."

Moreover, Judge Thornton accurately noted that defendant was not 

prejudiced by the revelation of his statement to Caruso while defendant was in 
25 A-2504-18

jail that investigators were looking for a Caucasian man—a fact that is not 

changed by defendant's insistence that the judge overlooked Caruso's suggestion 

earlier in the same statement that the case was merely an "identification" case. 

Critically, Caruso's designation of defendant's case as one of "identification" 

occurred when Caruso met defendant near the social club—before Caruso was 

retained—and was thus not protected by the attorney-client privilege as 

previously explained. In any event, defendant has not argued how exactly he 

was prejudiced, he merely states that "it is difficult to imagine a more prejudicial 

statement than a defense investigator revealing the defense strategy 

(misidentification/possible alibi)." In short, there were no protected 

communications that prejudicially revealed a misidentification strategy, and as 

before, if defendant sought to establish an alibi defense, he would have had to 

disclose that information to the MCPO. Accordingly, Judge Thornton 

appropriately concluded that there was no breach of the attorney-client privilege 

that warranted recusal of the MCPO.

IV.

We reach the same conclusion as to defendant's challenge to Judge 

O'Brien's reliance on Judge Thornton's findings and applying the law of the case

doctrine to defendant's attorney-client privilege claims when rejecting 
26 A-2504-18

defendant's motion to dismiss the indictment. The doctrine generally prohibits 

a second judge, in the absence of additional developments or proofs, from 

differing with an earlier ruling. See Lombardi v. Masso, 207 N.J. 517, 538-39

(2011). "It is a non-binding rule intended to 'prevent relitigation of a previously 

resolved issue.'" Id. at 538 (quoting In re Estate of Stockdale, 196 N.J. 275, 311

(2008)). 

"A hallmark of the law of the case doctrine is its discretionary nature, 

calling upon the deciding judge to balance the value of judicial deference for the 

rulings of a coordinate judge against those 'factors that bear on the pursuit of 

justice and, particularly, the search for truth.'" Id. at 538-39 (quoting Hart v.

City of Jersey City, 308 N.J. Super. 487, 498 (App. Div. 1998)). While the law

of the case doctrine is a discretionary, non-binding rule, "[p]rior decisions on 

legal issues should be followed unless there is substantially different evidence 

at a subsequent trial, new controlling authority, or the prior decision was clearly 

erroneous." Sisler v. Gannett Co., 222 N.J. Super. 153, 159 (App. Div. 1987). 

We do not discern any abuse of Judge O'Brien's discretion in this case. 

The judge appropriately noted that the facts and arguments again advanced by 

defendant as to whether a violation of the attorney-client privilege had occurred 

were the same—there was no new or different evidence nor any new authority, 
27 A-2504-18

and as we have now confirmed, her conclusions were legally correct. 

Furthermore, as already discussed, Judge Thornton's findings were not clearly 

erroneous. As such, Judge O'Brien was legally permitted to apply the law of the 

case doctrine, and appropriately did so.

V.

We turn next to defendant's argument that the prosecution's reading of 

Caruso's statements to the grand jury that Caruso later recanted constituted 

prosecutorial misconduct. We conclude this contention is without sufficient 

merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). Suffice it to 

say there was no indication that when the prosecutor presented Caruso's 

statement to the grand jury that the prosecutor had reason to know Caruso would 

recant six years later. Moreover, because "[r]ecantation testimony is generally 

considered exceedingly unreliable," State v. Hogan, 144 N.J. 216, 239 (1996), 

Caruso's recantation did not give rise to exculpatory evidence. See id. at 237-

38 (stating a prosecutor is only required at the grand jury stage to present 

evidence contrary to the State's position in the rare circumstance where the 

prosecution has "actual knowledge" of evidence that both "directly negates 

guilt" and is "clearly exculpatory"); see also State v. Scherzer, 301 N.J. Super. 

363, 427-28 (App. Div. 1997) (stating evidence is not clearly exculpatory where 
28 A-2504-18

its presentation would require the grand jury to make a credibility 

determination). 

VI.

Equally without merit is defendant's contention that the grand jury 

impermissibly relied on hearsay evidence. Contrary to defendant's contention, 

as Judge O'Brien found, courts have long recognized that indictments "may be 

based largely or wholly on hearsay and other evidence which may not be legally 

competent or admissible at . . . trial." State v. Holsten, 223 N.J. Super. 578, 585

(App. Div. 1988) (emphasis added) (quoting State v. Schmidt, 213 N.J. Super. 

576, 584 (App. Div. 1986)), rev'd on other grounds, 110 N.J. 258 (1988); see 

also State v. Scherzer, 301 N.J. Super. 363, 428 (App. Div. 1997). Moreover, 

an indictment need not be dismissed where hearsay or even "highly prejudicial" 

evidence has been presented to the grand jury where the grand jury process itself 

has not been shown to be unfair. Scherzer, 301 N.J. Super. at 428-29. 

VII.

Finally, we also find no basis for Judge Thornton to have changed the 

venue of defendant's case to another vicinage. Here, we find no reason to disturb 

the judge's discretionary determinations that defendant failed to demonstrate 

how the judge to whom his case was last assigned was biased and, for that 
29 A-2504-18

reason, a change of venue was not warranted. See Dalal, 221 N.J. at 606-07. As 

the State pointed out in its brief, the judges with whom defendant perceived he 

had issues had either retired or recused themselves. There was no reason to 

change the venue.

VIII.

To the extent we have not specifically addressed any of defendant's 

remaining arguments, we conclude they too are without sufficient merit to 

warrant discussion in a written opinion. R. 2:11-3(e)(2). 

Affirmed.