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The appeals judges focused, in large part, on what they considered inappropriate testimony by a detective in the prosecution of Sui Kam “Tony” Tung, who prosecutors said shot Cantor – who was his estranged wife’s lover – and then set his body and house on fire.
The panel also said prosecutors erred in making “repeated references” during the trial to Tung saying that he wanted a lawyer and refusing to allow non-warranted searches of his car and computer – rights that the judges said the U.S. Constitution guarantees.
Jurors in Hackensack found Tung guilty in March 2016 of murder and aggravated arson, as well as stalking Cantor, among other counts, after deliberating for three and a half days.
Tung, 56, was sentenced to life without parole for nearly 64 years, which he’s serving in New Jersey State Prison in Trenton.
Teaneck firefighters who extinguished the blaze at the 59-year-old Cantor’s Elm Avenue home on March 6, 2011 found his body in the same basement bedroom where he'd slept with Tung’s estranged wife.
Cantor was shot dead in the back of the head three days after Tung’s wife served him with divorce papers.
His corpse was placed on the bed in the basement bedroom, doused with an accelerant, and set on fire to destroy all evidence, prosecutors said.
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SEE: Jurors in Hackensack on Tuesday convicted a Manhattan man of murder and aggravated arson, among other charges, in the killing of popular software engineer Robert Cantor in his Teaneck home.
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Defense attorney Robert Kalisch argued during the trial that Tung was “the only suspect who was ever investigated” for the crime, despite no evidence that places him in New Jersey or Teaneck the night of the March 6, 2011 slaying.
Murder convictions ordinarily aren’t overturned.
However, the state Appellate Division agreed with Assistant Deputy Public Defender Daniel S. Rockoff that prosecutors “elicited inadmissible testimony” from Bergen County Prosecutor's Office Detective James
Brazofsky “regarding his belief in [Tung’s] guilt.”
The detective’s testimony “conveyed to the jury that Brazofsky could tell defendant was a guilty liar, and the prosecutor reinforced this impression in closing,” the appeals judges wrote.
Four times the judge in the case sustained the defense lawyer’s objections to Brazofsky characterizing Tung as guilty because of what the detective thought the defendant was thinking at the time based on his behavior, emotional state and credibility.
Witnesses can testify about what they see, hear or otherwise observe in a defendant’s behavior – such as “slumping forward, slouching, freezing, and staring at some points while avoiding eye contact” -- but not what they “believed, thought or suspected,” the appeals judges noted.
As such, Brazofsky's opinions about Tung’s truthfulness and guilt shouldn’t have been permitted, they ruled.
“A jury's determination of criminal guilt or innocence is its exclusive responsibility," they wrote. “It is ‘wholly improper’ for a witness to opine that the defendant is guilty of the crime charged.”
Nor can a witness offer an opinion that the defendant is lying, the panel noted.
A police officer’s testimony is particularly sensitive, the judges added, because jurors “may be inclined to accord special respect to such a witness” and give added significance to what he or she says in weighing evidence.
The panel cited three specific instances in what it said was Brazofsky's improper testimony:
(1) “an unsolicited remark that, by the time he was questioning defendant on March 7, 2011, defendant had been to Cantor's home [f]our times, meaning the three visits substantiated by other witnesses and a fourth visit to murder Cantor”;
(2) “testimony regarding defendant's silences”;
(3) “ [an] opinion that [Tung’s] answers were untruthful, ‘evasive,’ ‘vague’ and ‘odd'."
“Most troubling is that Brazofsky frequently made comments on the manner in which [Tung] gave responses, suggesting that [his] own experience and specialized training enabled him to determine that defendant was lying,” the appellate court found.
Brazofsky also emphasized that he’d been administering lie detector tests for 10 years and could tell when someone was lying, the judges said.
Jurors had no other way of knowing how Tung behaved while being interviewed by Brazofsky, “causing greater danger that the [they’d] place reliance on Brazofsky's truth-telling expertise, rather than making [their] own credibility determinations,” they wrote.
“The jury's evaluation of whether [Tung’s] denial of guilt was credible was tainted by Brazofsky's clearly and repeatedly stated opinion,” the panel concluded. “When combined with other errors, this deprived defendant of a fair trial.”
The Appellate Division sent the case back to Superior Court in Hackensack to be retried.
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