NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-0831-18
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
ANGEL E. CESAR,
Defendant-Appellant. _______________________
Submitted March 23, 2021 – Decided April 23, 2021
Before Judges Yannotti, Mawla and Natali.
On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 16-03-0203.
Joseph E. Krakora, Public Defender, attorney for appellant (Andrew R. Burroughs, Designated Counsel, on the briefs).
Lyndsay V. Ruotolo, Acting Union County Prosecutor, attorney for respondent (Milton S. Leibowitz, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).
PER CURIAM Defendant was tried before a jury and found guilty of first-degree
possession of cocaine, with intent to distribute, in violation of N.J.S.A. 2C:35-
5(a)(1) and N.J.S.A. 2C:35-5(b)(1), and other offenses. The trial judge
sentenced defendant to an aggregate prison term of twenty-four years, with eight
years of parole ineligibility. Defendant appeals from the judgment of conviction
(JOC) dated September 28, 2018. We affirm.
I.
On March 11, 2016, a Union County grand jury returned an indictment
charging defendant with: third-degree possession of a controlled dangerous
substance (CDS) (cocaine), N.J.S.A. 2C:35-10(a)(1) (count one); first-degree
possession of a CDS (cocaine) in a quantity of five ounces or more, with intent
to distribute, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(1) (count two);
second-degree possession of a CDS (cocaine), with intent to distribute in or
within 500 feet of a public park, N.J.S.A. 2C:35-7.1 (count three); third-degree
possession of imitation CDS with intent to distribute, under circumstances that
would lead a reasonable person to believe that the substance was a CDS,
N.J.S.A. 2C:35-11(a) (count four); and second-degree eluding a law
enforcement officer after having received a signal from such officer to bring his
vehicle to a full stop, creating a risk of death or injury, N.J.S.A. 2C:29-2(b)
A-0831-18 2 (count five). Co-defendant Ariel Jazmin also was charged in counts one, two,
three, and four. In addition, Jazmin was charged with hindering a law
enforcement officer from making an arrest, N.J.S.A. 2C:29-2(a) (count six).
At the trial, the State presented testimony, which established that on
January 20, 2016, at approximately 8:00 p.m., law enforcement officers from
the Union County Prosecutor's Office (UCPO) and the Linden Police
Department conducted surveillance in the area of Park Avenue in Linden.
Detective Filipe Afonso was in an unmarked vehicle. He was accompanied by
Sergeant William Mannix, the driver of the vehicle, and Detective Alex Lopez.
Detective Kevin Kolbeck was in an unmarked maroon GMC Yukon truck
that was equipped with lights and sirens. He was accompanied by Detectives
Vito Colacitti and Maurice Rawlins. Kolbeck parked his vehicle on Ingalls
Avenue. Detective Daniel Fay was in an unmarked black pickup truck equipped
with police lights and sirens. Lieutenant Jorge Jimenez was driving a Chevy
Impala with a light package in the front.
At approximately 10:30 p.m., Kolbeck observed a black Chevy Suburban
on Alberta Avenue, which was approximately three blocks from his surveillance
location. Kolbeck moved his vehicle to Hagel Avenue to obtain a better view
A-0831-18 3 of the Suburban. Shortly after 11:00 p.m., Afonso instructed Kolbeck and Fay
to conduct a motor vehicle stop of the Suburban.
After the driver parked the Suburban on the side of the road, Kolbeck
pulled up behind the vehicle and activated his lights. Fay positioned his vehicle
in front of the Suburban. The Suburban then drove around Fay's vehicle and
sped off toward Park Avenue, at approximately sixty-five to seventy miles per
hour. Kolbeck followed the vehicle. Jimenez was stationed on Park Avenue at
the time. He joined the pursuit behind Kolbeck's vehicle.
While he was following the Suburban, Kolbeck broadcasted his position
over his police radio. The Suburban turned right and headed north on Park
Avenue toward a park. When the Suburban drove through the intersection of
Park and St. George's Avenue and entered the park, the driver of the Suburban
lost control and crashed head on into a tree.
Kolbeck parked his vehicle behind the Suburban, and Colacitti and
Rawlins got out. As the officers were exiting the vehicle, Jazmin jumped out of
the Suburban and ran. Jimenez saw Jazmin discard an item that appeared to be
a kilo of suspected narcotics. Kolbeck observed Jazmin running and gave chase,
yelling "[p]olice, get on the ground." Jazmin did not comply.
A-0831-18 4 Jimenez positioned his vehicle to cut off Jazmin's escape route. Kolbeck
then tackled Jazmin and brought him to the ground. The officers arrested Jazmin
and searched him for weapons. During the search, the officers found $325 in
cash, keys, a watch, a necklace, and a pair of earrings. Jazmin was taken to a
hospital.
The officers then searched the area where Jimenez saw Jazmin discard the
item. An officer found the item and handed it to Jimenez, who gave it to Afonso.
Meanwhile, Colacitti and Rawlins approached the passenger side of the
Suburban. Colacitti said he could not see inside the vehicle because the
windows were heavily tinted.
Colacitti used a tool to shatter the rear windows of the Suburban. While
he was on the passenger side of the vehicle, Colacitti observed defendant
extending his hands from the front passenger-side window. The officer grabbed
defendant's hands.
According to Colacitti, defendant appeared to have been seated on the
driver's side of the Suburban, and he was reaching across the vehicle toward the
passenger-side window. Colacitti pulled defendant out of the Suburban.
Rawlins handcuffed defendant and placed him under arrest. As Colacitti was
A-0831-18 5 pulling defendant out of the vehicle, he observed an open, black duffle bag in
the center console.
In the duffle bag, Colacitti found four rectangular-shaped packages,
wrapped with brown tape. Each package weighed a kilogram. Colacitti testified
that the packages each contained compressed powder formed into rectangular
blocks. He said the contents were packaged to look like cocaine.
Colacitti and Rawlins searched defendant and recovered a set of keys, an
iPhone, approximately $596 in cash, a New York driver's license, a Rolex watch,
three gold chains, a ring, and diamond earrings. Because defendant complained
about an injury to his leg, he was transported to a hospital.
The Suburban was later towed from the crash site. Afonso searched the
vehicle. He found a coat, several telephones, a piece of jewelry, and a rock-like
substance on the driver's seat. Later, Afonso transported the item that Jazmin
had discarded, the packages found in the Suburban, and the rock-like substance
to the UCPO's forensic laboratory, where they were tested by Margaret Cuthbert,
a senior forensic chemist.
Cuthbert testified as an expert in the field of forensic chemistry and
analysis of illegal narcotics. She stated that State's Exhibit 65 (S-65), the item
that Jazmin had discarded and was referred to as Laboratory Item #001, weighed
A-0831-18 6 1,021.7 grams, which is 36.03 ounces. She said the laboratory's machines are
calibrated for weight daily.
Cuthbert further testified that S-65 was a solid, white substance with an
off-white, sticky substance in one area in the center. She took samples from the
sticky area and one of the corners. Both tested positive for cocaine. Cuthbert
also performed tests on two additional samples. The test results showed cocaine
was present in both samples.
Cuthbert later took five additional samples from S-65. The tests of these
samples were consistent with cocaine. After Cuthbert determined cocaine was
present in these five samples, she conducted an infrared test. The results of that
test were positive for the presence of boric acid. She explained that boric acid
is used in insecticides and other chemical manufacturing.
Cuthbert also testified about the results of the tests on the four packages
recovered from the duffel bag. According to Cuthbert, the first weighed 1,076.8
grams, the second weighed 1,074.6 grams, the third weighed 1,077.7 grams, and
the fourth weighed 1,097.5 grams. The tests of each package produced results
that were consistent with the presence of boric acid.
Cuthbert also tested a sample taken from the rock-like substance
recovered from the driver's seat of the Suburban. She said it weighed 4.235
A-0831-18 7 grams and cocaine was present in the sample. She stated that all of her findings
were within a reasonable degree of scientific certainty.
Sergeant Gary Webb of the UCPO testified for the State as an expert in
the field of packaging, handling, and distribution of narcotics. Webb provided
testimony about pricing and packaging of narcotics. He discussed the
differences between street, mid-level, and upper-level drug dealers, how kilos
of narcotics and other substances are formed, the use of cutting agents, and
methods drug dealers use to avoid detection.
Webb also described boric acid as a white powder. He stated that by
adding boric acid as a cutting agent, drug distributors can increase the amount
of the drugs they sell and thereby increase their profit margin.
Defendant and Jazmin elected not to testify. Neither defendant presented
any witnesses.
On April 12, 2018, the attorneys provided closing statements, and the trial
judge provided final instructions to the jury. On the morning of April 17, 2018,
the jury began its deliberations. During their deliberations, jurors found two
single-edge razor blades inside the pocket of defendant's jacket. The jacket had
been admitted into evidence, but the razor blades had not been admitted or
A-0831-18 8 marked as evidence. The judge conferred with the attorneys and they agreed
upon an instruction the judge would provide to the jury.
The judge then told the jurors "the only evidence that you may consider is
the [evidence] that's been brought [to your attention] and is labeled with
exhibits. If anything . . . for any inadvertent reason was brought in and taken
away, you shouldn't consider it." Thereafter, defendants' attorneys objected to
the instruction. The jury continued its deliberations.
Later, the judge excused a juror. On the morning of April 18, 2018, the
judge replaced the excused juror with an alternate and instructed the jury to
begin its deliberations anew.
The jury continued to deliberate and later that morning, returned its
verdict. The jury found defendant and Jazmin guilty on counts one, two, and
four, and not guilty on count three. In addition, defendant was found guilty on
count five, and Jazmin was found guilty on count six. Thereafter, the judge later
denied defendants' motion for a judgment of acquittal, notwithstanding the
verdict.
The judge sentenced defendant on September 14, 2018, and entered the
JOC. This appeal followed.
A-0831-18 9 On appeal, defendant raises the following arguments for our
consideration:
POINT I CERTAIN EVIDENTIARY RULINGS BY THE TRIAL COURT EFFECTIVELY DENIED DEFENDANT HIS SIXTH AMENDMENT RIGHT TO PRESENT A COMPLETE DEFENSE. (Raised Below).
A. BY GRANTING THE STATE'S MOTION TO LIMIT TESTIMONY AND ARGUMENT BY THE DEFENSE AND BY FURTHER DENYING DEFENDANT'S APPLICATION THAT A QUANTITATIVE ANALYSIS BE PERFORMED ON S-65, THE TRIAL COURT DENIED DEFENDANT'S SIXTH AMENDMENT RIGHT TO PRESENT A COMPLETE DEFENSE. (Raised Below).
B. THE TRIAL COURT ERRED WHEN IT DENIED DEFENDANT'S MOTION TO ADMIT HIS INCULPATORY STATEMENT UNDER N.J.R.E. 803(c)(25). (Raised Below).
POINT II THE TRIAL COURT ERRED WHEN IT ACCEPTED THE HEARSAY TESTIMONY OF THE STATE'S EXPERT THAT THE LABORATORY WHERE THE DRUGS HAD BEEN ANALYZED HAD BEEN ACCREDITED AND THAT THE MACHINES USED TO ANALYZE AND WEIGH THE SEIZED CONTRABAND HAD BEEN PROPERLY CALIBRATED AND MAINTAINED. (Raised Below).
POINT III
A-0831-18 10 THE TRIAL COURT ERRED WHEN IT ADMITTED DETECTIVE WEBB'S IMPERMISSIBLE NET OPINION TESTIMONY. (Raised Below).
POINT IV AS JURY DELIBERATIONS HAD LIKELY PROGRESSED TO A STAGE AT WHICH SUBSTANTIVE ISSUES HAD BEEN DECIDED AND DELIBERATIONS COULD NOT COMMENCE ANEW, THE TRIAL COURT ERRED BY SUBSTITUTING AN EXCUSED JUROR AND BY NOT SUA SPONTE DECLARING A MISTRIAL. (Partially Raised Below).
POINT V AS THE TRIAL COURT'S LIMITING INSTRUCTION WAS INSUFFICIENT TO CURE THE UNDUE PREJUDICE CAUSED BY THE JURY'S DISCOVERY OF RAZOR BLADES IN DEFENDANT'S JACKET DURING DELIBERATIONS, A MISTRIAL WAS THE ONLY REMEDY. (Raised Below).
POINT VI THE TRIAL COURT ERRED WHEN IT DENIED DEFENDANT'S MOTION FOR A JUDGMENT OF ACQUITTAL NOTWITHSTANDING THE VERDICT. (Raised Below).
POINT VII THE TRIAL COURT'S CUMULATIVE ERRORS DENIED DEFENDANT HIS RIGHT TO A FAIR AND RELIABLE TRIAL. (Not Raised Below).
POINT VIII THE SENTENCE IMPOSED IS UNFAIR AND EXCESSIVE GIVEN THE UNIQUE CIRCUMSTANCES OF THIS CASE. (Raised Below).
A-0831-18 11 II.
Defendant argues that the trial judge made several erroneous evidentiary
rulings. He contends the judge's rulings denied him of his right under the Sixth
Amendment to the United States Constitution to present a complete defense.
A trial court's evidentiary rulings should not be disturbed on appeal
"absent a showing of an abuse of discretion, i.e., there has been a clear error of
judgment." State v. Perry, 225 N.J. 222, 233 (2016) (emphasis omitted) (quoting
State v. Brown, 170 N.J. 138, 147 (2001)). We will not reverse the trial court's
evidentiary ruling unless it "was so wide of the mark that a manifest denial of
justice resulted." Ibid. (quoting State v. Marrero, 148 N.J. 469, 484 (1997)).
This standard of review applies when, as in this case, a defendant contends a
trial court's evidentiary ruling denied him of his constitutional right to present a
defense. Ibid. (citing State v. Fortin, 178 N.J. 540, 590 (2004)).
A. The Trial Court's Rulings Regarding S-65.
Prior to trial, defendants filed a motion to have S-65 retested. The motion
judge granted the application. Thereafter, the UCPO's forensic laboratory took
two samples from the exhibit and retested it in the presence of defendants'
expert. They tested positive for cocaine. Defendants later filed another motion
seeking further testing of five more samples from S-65. The judge granted the
A-0831-18 12 motion and the UCPO's lab conducted the additional tests. The results of these
tests also were positive for cocaine.
Defendants then filed a motion seeking an analysis of S-65 to determine
the amounts of cocaine and boric acid in the exhibit. The motion judge denied
the application. In his decision, the judge noted that defendant had been charged
with first-degree possession of a CDS, with intent to distribute or dispense, in a
quantity of five ounces or more, including any "adulterants or dilutants."
The judge found that the quantities of cocaine and boric acid in S-65 were
irrelevant. The judge noted that "purity" of the cocaine was not an element that
the State had to prove to establish defendants' guilt under N.J.S.A. 2C:35-5(a)(1)
and N.J.S.A. 2C:35-5(b)(1).
In addition, the State filed a motion in limine to bar defendants from
presenting any testimony or argument at trial concerning the percentage or
quantity of cocaine and boric acid in S-65, including the specific purity of the
cocaine; the unknown percentage or quantity of the cocaine and boric acid in S-
65, and why a quantitative test had not been performed on the exhibit. The State
also sought to bar defendants from speculating as to what such a quantitative
test would have revealed, and arguing to the jury that S-65 only contained a
small amount of cocaine.
A-0831-18 13 The trial judge granted the State's motion. Like the motion judge, the trial
judge found there is "no purity element" in the charge under N.J.S.A. 2C:35-
5(a)(1) and N.J.S.A. 2C:35-5(b)(1). The judge again determined that the relative
amounts of cocaine and boric acid in the exhibit were not relevant to determining
whether defendants were guilty of that offense.
On appeal, defendant argues that the jury should have been informed
about the "weight ratio" of the cocaine and boric acid in S-65. He asserts that if
S-65 contained a small amount of cocaine relative to the amount of boric acid,
this would have supported defendants' argument that S-65 was a "sample
package" that defendants intended to use to encourage the buyer to purchase the
four packages of boric acid.
Defendant contends that, by denying defendants' motion for a quantitative
analysis of S-65, and granting the State's motion in limine, the judge effectively
denied him of his constitutional right to present a complete defense to the intent
element of N.J.S.A. 2C:35-5. We disagree.
N.J.S.A. 2C:35-5(a)(1) provides in pertinent part that except as authorized
by N.J.S.A. 24:21-1 to -56, it is unlawful for any person "knowingly or
purposely . . . to possess or have under his control with intent to . . . distribute
A-0831-18 14 or dispense, a [CDS] or controlled substance analog." Furthermore, N.J.S.A.
2C:35-5(b)(1) states that a person who violates N.J.S.A. 2C:35-5(a) as to
(1) [h]eroin, or its analog, or coca leaves and any salt, compound, derivative, or preparation of coca leaves, and any salt, compound, derivative, or preparation thereof which is chemically equivalent or identical with any of these substances, or analogs, except that the substances shall not include decocainized coca leaves or extractions which do not contain cocaine or ecogine, or 3,4-methylenedioxymethamphetamine or 3,4- methylenedioxyamphetamine, in a quantity of five ounces or more including any adulterants or dilutants is guilty of a crime of the first degree.
[(Emphasis added).]
Here, the judges correctly found that under N.J.S.A. 2C:35-5(a)(1) and
N.J.S.A. 2C:35-5(b)(1), the determination of whether a defendant possessed
cocaine "in a quantity of five ounces or more including any adulterants or
dilutants" does not turn on the relative weights of the cocaine and any
"adulterants or dilutants." The judge's decisions on this issue were consistent
with State v. Gosa, 263 N.J. Super. 527, 536 (App. Div. 1993), where we held
that under N.J.S.A. 2C:35-5(b)(1), the weight of the CDS for violations of
N.J.S.A. 2C:35-5 includes the weight of the "listed drug" and "any adulterants
or dilutants."
A-0831-18 15 Therefore, the judges correctly found that the relevant weight of the CDS
and any "adulterant or dilutant" has no bearing on whether the defendant is
guilty of the offense. See also State v. Williams, 310 N.J. Super. 92, 96-97
(App. Div. 1998) (holding N.J.S.A. 2C:35-5(b) prohibits the possession of the
specified quantity "of cocaine and any adulterants, not just the weight of the
cocaine itself").
Accordingly, we reject defendant's contention that the trial judge denied
him of the right to present a complete defense as to whether he "knowingly or
purposely" possessed the cocaine, as charged in count two. We note that no
evidence was presented at trial that would have allowed the jury to draw the
inference that defendants possessed S-65 to use as a sample in selling the four
kilos of imitation cocaine the officers found in the Suburban.
B. Admission of Defendants' Statements.
Prior to trial, defendants filed a motion for permission to admit two out-
of-court statements they made during their encounters with the police.
Defendant told the officers the contents of the packages they had recovered were
"fake." In addition, Jazmin asked the officers, "[w]hat's the penalty for selling
fake drugs?" The judge denied the motion.
A-0831-18 16 On appeal, defendant contends the statements were admissible under Rule
803(c)(25), the hearsay exception for statements against interest , which applies
"regardless of whether the declarant is available as a witness." N.J.R.E.
803(c)(1). At the time of trial, Rule 803(c)(25) allowed the introduction of:
A statement that a reasonable person in the declarant's position would have made only if the person believed it to be true because, when made, it was so contrary to the declarant’s proprietary, pecuniary or social interest, or had so great a tendency to invalidate the declarant’s claim against another or to expose the declarant to civil or criminal liability. Such a statement is admissible against a defendant in a criminal proceeding only if the defendant was the declarant. [1]
Defendants' statements did not qualify for admission under the rule. They
may have been statements against interest regarding the possession of four kilos
1 Effective July 1, 2020, Rule 803(c)(25) provides:
A statement which was at the time of its making so far contrary to the declarant's pecuniary, proprietary, or social interest, or so far tended to subject declarant to civil or criminal liability, or to render invalid declarant's claim against another, that a reasonable person in declarant's position would not have made the statement unless the person believed it to be true. Such a statement is admissible against a defendant in a criminal proceeding only if the defendant was the declarant. A-0831-18 17 of imitation cocaine, as charged in count four, but they were not statements
against interest as to the possession of cocaine, as charged in count two.
We are convinced that a statement indicating that an individual may have
committed a third-degree crime, while simultaneously indicating that the
individual did not commit a more serious offense, is not a statement against
interest for purposes of Rule 803(c)(25). The judge correctly found that the
statements were not admissible.
We are also convinced that if the statements were statements against
interest under Rule 803(c)(25), the judge properly exercised his discretion under
Rule 403 by precluding defendants from admitting them into evidence. The rule
provides that the court can exclude "relevant evidence if its probative value is
substantially outweighed by the risk of: (a) [u]ndue prejudice, confusing the
issues, or misleading the jury . . . ." N.J.R.E. 403.
Here, the trial judge found that, if admitted, the statements would confuse
the jury because they were inculpatory as to the charge of possession of imitation
cocaine with intent to distribute, but exculpatory as to the possession of five
ounces or more of cocaine. The judge's decision was not a mistaken exercise of
discretion.
A-0831-18 18 However, if the judge erred by precluding defendant from admitting the
two statements, the error was harmless. Here, the State presented significant, if
not overwhelming, evidence that defendants knowingly and purposely
possessed, with intent to distribute or dispense, five ounces or more of cocaine
"and any adulterant or dilutant" as well as four kilos of imitation cocaine.
The statements defendants sought to admit would have provided
additional evidence that defendants possessed the imitation cocaine but would
have had no impact on the other, more serious charge. Thus, if the trial judge
erred by denying defendant's motion to admit the statements, the error was not
"clearly capable of producing an unjust result." R. 2:10-2.
III.
Defendant next argues that the trial judge erred by allowing Cuthbert to
testify about the results of her analysis of the contraband. Defendant contends
the State failed to present documents establishing that the UCPO's forensic
laboratory was accredited, and that the machines used to test the contraband
were properly maintained and calibrated. Defendant asserts the judge
improperly permitted Cuthbert to testify as to the lab's accreditation and the
calibration of the machinery.
A-0831-18 19 When a party in a criminal or quasi-criminal matter intends to proffer a
certificate regarding tests of the composition, quality, or quantity of a substance,
the party must provide notice of its intent "at least [twenty] days before the
proceeding begins." N.J.S.A. 2C:35-19. The opposing party must provide
notice of its intent to object, and the grounds of the objection, within ten days
after receiving notice of the party's intent to proffer the certificate. N.J.S.A.
2C:35-19(c). If a notice of objection is filed, the court must determine the
admissibility of the certificate not later than two days before the beginning of
the proceeding. Ibid.
Here, the State provided defendants with a laboratory report pertaining to
Cuthbert's analysis of the contraband, and defendants filed a notice of objection
to its admission. The notice did not, however, indicate that defendants intended
to challenge the report on the basis of the lab's lack of accreditation or the failure
to calibrate the machinery used in the tests. Defendants' attorneys also did not
seek copies of any records on those issues.
Defendants raised the issue for the first time at trial during Cuthbert's voir
dire. The judge then conducted a Rule 104 hearing, outside the presence of the
jury. During the hearing, Cuthbert testified that she has been a forensic scientist
A-0831-18 20 in the UCPO's laboratory for thirty-four years and she holds the title of senior
forensic chemist.
Cuthbert stated that the UCPO's laboratory was accredited. She admitted
she does not personally calibrate the spectrometers used in the lab but said these
instruments and weights are calibrated. The judge ruled that Cuthbert's
testimony regarding her tests of the contraband was admissible. Then, Cuthbert
testified before the jury that the laboratory was accredited, and the scientists
calibrate the lab's machinery every day.
On appeal, defendant contends the admission of Cuthbert's testimony
regarding the accreditation of the laboratory and the calibration of the machines
denied him of his constitutional right to confront adverse witnesses. We
disagree.
A person charged with a criminal offense has the right to confront his
accusers. U.S. Const. amend. VI. "This right is founded on the belief that
subjecting testimony to cross-examination enhances the truth-discerning process
and the reliability of the information." State v. Kuropchak, 221 N.J. 368, 386
(2015) (citing California v. Green, 399 U.S. 149, 159 (1970); State ex rel. J.A.,
195 N.J. 324, 342 (2008)). The Confrontation Clause generally forbids the
admission of testimony that is directly or indirectly derived from a non-
A-0831-18 21 testifying witness and incriminates a defendant. State v. Branch, 182 N.J. 338,
350 (2005).
Rule 703 states that if the data upon which an expert bases an opinion or
inference is "reasonably relied upon by experts in the particular field in forming
opinions or inferences upon the subject, the facts or data need not be admissible
in evidence." The rule permits expert witnesses to rely upon statements in
"nontestimonial foundational documents" when formulating their opinions.
State v. Michaels, 219 N.J. 1, 34-35 (2014).
Documents related to a laboratory's accreditation and the calibration of its
test machines are "nontestimonial foundational documents" because they do not
report past facts and are not generated in order to establish a fact that is an
element of an offense. See State v. Chun, 194 N.J. 54, 142-44 (2008); see also
State v. Sweet, 195 N.J. 357, 372-74 (2008).
In this case, the State did not present the foundational documents
pertaining to the accreditation of the lab and the calibration of the machinery.
However, in her testimony, Cuthbert provided essentially the same facts that
would have been established by those certificates. The record shows she had
personal knowledge of those facts, based on her long-term employment in the
A-0831-18 22 UCPO's laboratory. Cuthbert properly relied upon those facts in formulating her
opinions.
In support of his argument that the judge erred by allowing Cuthbert's
expert testimony, defendant relies upon State v. Miller, 170 N.J. 417 (2002). In
that case, the defendant was indicted for possession of a CDS, and the State
Police Forensic Science Bureau certified that the substance was cocaine. Id. at
422. The State notified defense counsel of its intent to proffer the laboratory
certificate pertaining to the analysis instead of a witness, pursuant to N.J.S.A.
2C:35-19(c). Ibid. The judge admitted the certificate. Id. at 424.
The Court explained that the purpose of N.J.S.A. 2C:35-19 is to "put the
State on notice of those cases in which a defendant will not consent to the
admission of the lab report and with respect to which the State must be prepared
to produce an expert witness at trial or prove why one is not necessary." Id. at
432. The statute requires the defendant "to notify the State of his [or her] refusal
to stipulate to the lab report and to assert that the lab results (composition,
quality or quantity of the tested substance) will be contested at trial." Ibid. The
defendant is not required to detail an objection to the admission of the lab
certificate. Id. at 436. The Court held that, as so interpreted, the statutory
procedure passes constitutional muster. Ibid.
A-0831-18 23 In this case, defendants filed a notice indicating they were objecting to the
admission of the State's lab certificate and would be contesting the composition,
quality, and quantity of the tested substances. Accordingly, consistent with
Miller, the State presented Cuthbert as an expert witness to address the objection
and testify as to her tests of the contraband and the test results.
As noted, under Rule 703, an expert witness may rely upon facts in
nontestimonial foundational documents when formulating an opinion.
Michaels, 219 N.J. at 34-35. Miller does not preclude the State's expert witness
from testifying to those facts, based on the expert's personal knowledge and
experience, as part of the testimony addressing an objection to the admission of
the lab certificate regarding the test results. Therefore, defendant's reliance
upon Miller is misplaced.
IV.
Defendant further argues that the judge erred by permitting Detective
Webb to testify at trial. Defendant contends Webb's report set forth inadmissible
net opinions.
In this case, defendants filed a motion to bar Webb's testimony, arguing
that his expert report contained nothing but conclusions. Defendants contended
A-0831-18 24 that Webb had not provided a methodology for his opinions, and they challenged
his qualifications. The judge denied the motion.
The decision of whether to admit or exclude expert testimony is
committed to the discretion of the trial court. State v. Berry, 140 N.J. 280, 293
(1995). "The trial court has discretion in determining the sufficiency of the
expert's qualifications 'and [its decision] will be reviewed only for manifest error
and injustice.'" State v. Torres, 183 N.J. 554, 572 (2005) (quoting State v.
Ravenell, 43 N.J. 171, 182 (1964)).
"An expert is one who is qualified 'by knowledge, skill, experience,
training, or education' and who is therefore permitted to offer testimony in the
form of an opinion that 'will assist the trier of fact to understand the evidence or
to determine a fact in issue.'" State v. McLean, 205 N.J. 438, 449 (2011)
(quoting N.J.R.E. 702). Under Rule 702, expert testimony may be admitted if:
(1) it concerns "a subject matter that is beyond the ken of the average juror;" (2)
the testimony pertains to a field which is at a "state of the art such that an expert's
testimony could be sufficiently reliable"; and (3) the witness has "sufficient
expertise to offer the intended testimony." Creanga v. Jardal, 185 N.J. 345, 355
(2005) (quoting Kemp ex rel. Wright v. State, 174 N.J. 412, 424 (2002)).
A-0831-18 25 The net opinion rule is a corollary of Rule 703 and precludes "the
admission into evidence of an expert's conclusions that are not supported by
factual evidence or other data." Polzo v. Cnty. of Essex, 196 N.J. 569, 583
(2008) (quoting State v. Townsend, 186 N.J. 473, 494 (2006)). The rule
"requires an expert to give the why and wherefore of his or her opinion, rather
than a mere conclusion." Ibid. (quoting Townsend, 186 N.J. at 494).
Our courts have permitted law enforcement officers to testify as expert
witnesses in drug cases because "the average juror is not knowledgeable about
the arcana of drug-distribution schemes." State v. Cain, 224 N.J. 410, 426
(2016). "Law enforcement officers with extensive training, education, and
experience of the drug world have 'specialized knowledge [that] will assist the
trier of fact to understand the evidence or to determine a fact in issue.'" Ibid.
(quoting N.J.R.E. 702).
Here, the trial judge did not err by permitting Webb's testimony. Based
on his extensive experience in law enforcement, Webb was properly qualified
as an expert in the packaging, handling, and distribution of illegal narcotics.
The judge noted that Webb was "familiar with the manner in which [CDS]
are used, packaged and distributed at the street, mid and upper levels as well as
the structured criminal street gangs and their activities including but not limited
A-0831-18 26 to drug distribution." Moreover, Webb's testimony did not run afoul of the net
opinion rule. Webb provided a sufficient factual basis for his opinions.
On appeal, defendant argues that Webb improperly offered an opinion as
to the relationship between a person's expensive jewelry and drug distribution .
The record shows, however, that Webb did not provide such an opinion at trial.
Defendant also contends the judge erred by permitting Webb to respond
when the assistant prosecutor asked, "[i]n your experience, how much cocaine
would you expect somebody that's using cocaine to purchase?" Defendant
argues that Webb did not address this issue in his report.
"[A] trial judge has the discretion to preclude expert testimony on a
subject not covered in the written reports furnished in discovery." Ratner v.
General Motors Corp., 241 N.J. Super. 197, 202 (App. Div. 1990). Here, the
judge found that the issue was sufficiently identified in Webb's expert report,
and defendants were on notice that Webb would address the question of the
amount of cocaine a person might possess for personal use. The judge's ruling
was not a mistaken exercise of discretion.
Defendant also contends the trial judge erred by substituting a juror during
deliberations after a juror was excused. He argues that the jury's deliberations
A-0831-18 27 had proceeded to a point where substitution was not a permissible remedy and a
mistrial was required. We do not agree.
A trial court's decision to remove and substitute a deliberating juror
because of an inability to continue pursuant to Rule 1:8-2(d)(1) is reviewed for
abuse of discretion. State v. Musa, 222 N.J. 554, 564-65 (2015). When a trial
judge excuses a juror after deliberations have begun and substitutes an alternate
juror, "the court shall instruct the jury to recommence deliberations . . . ." Rule
1:8-2(d)(1). Before making the substitution, the trial court must "consider[]
whether the jury appears to have progressed to the point where issues have been
decided and deliberations cannot commence anew with a substituted juror."
State v. Terrell, 452 N.J. Super. 226, 274 (App. Div. 2016) (citing State v. Ross,
218 N.J. 130, 151 (2014)).
In making that decision, the trial court must consider the impact the juror's
substitution will have "on the jury process." Ross, 218 N.J. at 147. If a
substitution of a juror would "imperil the integrity of the jury's process . . . [t]he
court must be prepared to declare a mistrial." Ibid. Granting a mistrial in these
circumstances is, however, "an extraordinary remedy to be exercised only when
necessary 'to prevent an obvious failure of justice.'" State v. Yough, 208 N.J.
385, 397 (2011) (quoting State v. Harvey, 151 N.J. 117, 205 (1997)). There is
A-0831-18 28 no "bright line rule" with respect to the length of jury deliberations that would
trigger a finding that deliberations are too far along to substitute an alterna te
juror. Ross, 218 N.J. at 149 (quoting State v. Williams, 171 N.J. 151, 169
(2002)).
In deciding whether a reconstituted jury can render a just verdict, the court
must consider, among other things, "the timing of the juror's departure, his or
her explanation of the problem prompting the inquiry, and any communications
from the jury that may indicate whether deliberations have progressed to the
point at which a reconstituted and properly charged jury will be unable to
conduct open and mutual deliberations." Ibid. The court also must consider
"whether the original jurors had formed opinions about the case in the absence
of the alternate juror . . . ." State v. Williams, 377 N.J. Super. 130, 149 (App.
Div. 2005) (quoting People v. Roberts, 214 Ill. 2d 106, 124 (2005)).
As stated previously, on April 12, 2018, the judge provided his final
instructions to the jury. The proceedings resumed on the morning of April 17,
2018, and the jury began its deliberations. During the deliberations, a juror
informed the judge that she had an appointment for pre-surgery clearance the
following day at 2:00 p.m. and she needed to leave by 1:00 p.m.
A-0831-18 29 The juror also informed the judge that her surgery was scheduled for April
19, 2018. The judge discussed the matter with counsel and asked them for their
views on how to proceed. The attorneys agreed the judge should ask the juror
what she wanted to do. The juror asked to be excused, and the judge granted
the request. Defendants did not object.
The following day, April 18, 2018, the judge substituted an alternate juror
and instructed the reconstituted jury to begin its deliberations anew. The
reconstituted jury returned its verdict that day. The record indicates that both
the initial jury and the reconstituted jury deliberated for several hours.
We are convinced that, under the circumstances, the judge did not err by
substituting the juror with an alternate and allowing the reconstituted jury to
begin its deliberations anew. We reject defendant's contention that the "most
likely scenario" was that the new jury simply adopted findings made by the
initial jury on the drug counts and then deliberated only on the eluding c harges.
Defendant's assertion is not supported by the record.
We also reject defendant's contention that the reconstituted jury was not
able to discuss and consider each count of the indictment thoughtfully. There is
no evidence in the record indicating that the deliberations by the new jury were
A-0831-18 30 "illusory." The initial jury had sent three questions to the judge, including a
request to playback a video, which the new jury also requested.
Moreover, as noted, the judge instructed the jurors they must start their
deliberations anew. The judge told the members of the original deliberating jury
they must set aside and disregard what may have occurred during the earlier
deliberations. The judge instructed the reconstituted jury it must consider all of
the evidence presented during the trial.
The record shows the initial jury did not proceed to a point of deliberations
where substituting the excused juror with an alternate was not a proper remedy.
The judge was not required to declare a mistrial. Accordingly, we reject
defendant's contention that he was denied of his right to a fair and reliable trial.
VI.
Defendant argues that the trial judge erred by refusing to declare a mistrial
after the jury discovered razor blades in the pocket of his jacket during
deliberations. He contends the judge's instruction was insufficient to cure the
prejudice resulting from the jury's discovery of the razor blades. Again, we
The trial judge has the obligation to ensure that the jury's impartiality is
not significantly threatened by the jury's exposure to "contact with not-record
A-0831-18 31 facts." State v. Wakefield, 190 N.J. 397, 485-86 (2007) (quoting State v. Loftin,
146 N.J. 295, 365 (1996)). Under these circumstances, the trial judge has the
power to grant a mistrial, but this power "is to be exercised with the greatest
caution." State v. Winter, 96 N.J. 640, 647 (1984) (quoting State v. Witte, 13
N.J. 598, 611 (1953)). "Unless the vice is plainly ineradicable by an instruction
to the jury, a mistrial is not allowable of right." Ibid. (quoting Witte, 13 N.J. at
611).
The trial judge also has the discretion to determine "whether the
appropriate response is a curative instruction, as well as the language and detail
of the instruction . . . [because] the trial judge . . . 'has the feel of the case and is
best equipped to gauge the effect of a prejudicial comment on the jury in the
overall setting.'" Wakefield, 190 N.J. at 486 (quoting Winter, 96 N.J. at 647).
"The adequacy of a curative instruction necessarily focuses on the capacity of
the offending evidence to lead to a verdict that could not otherwise be justly
reached." Winter, 96 N.J. at 647.
The record shows that on April 17, 2018, after the jury began deliberating,
the jury notified the sheriff that razor blades had been found in the pocket of
defendant's jacket. The judge conferred with counsel and they agreed upon a
limiting instruction. The judge accordingly instructed the jury that:
A-0831-18 32 The [jury] room is supposed to be clear and clean and empty. Not decorated, and just simple so that [the] only things that are in there is the evidence that's brought in, and your collective memory of what you understood and heard happened.
So the only evidence that you may consider is the stuff that's been brought in to you, and is labeled with exhibits. If anything . . . for any inadvertent reason was brought in and taken away, you shouldn't consider it. And the fact of any of it shouldn't even exist. That big eraser that we talked about, [whenever] I would do objections, and if I were to sustain it, I'd ask you to just take the eraser and erase.
I'm trusting and counting and knowing, confidently that you guys can do that. Because every time I did the eraser move, you guys seemed to follow it. And that's what we're doing right now.
So if by any chance anything was brought in inadvertently, and had to be taken away, please disregard it with the big eraser. And I just charge you and trust you, and I'm fully confident in you[r] guys' ability to . . . take that instruction to heart, and to apply it, please.
The judge did not mistakenly exercise his discretion by electing to address
the discovery of the razor blades with a curative instruction. The instruction
addressed any potential for undue prejudice that might arise from the discovery
of the razor blades. The judge instructed the jurors that in reaching their verdict,
they were only to consider evidence admitted during the trial. The judge's
instruction was firm, clear, and provided promptly. A mistrial was not required.
A-0831-18 33 Defendant argues, however, that the discovery of the razor blades
undercut his defense that the police had opened S-65 and either planted or
contaminated the exhibit with cocaine. The contention is entirely without merit.
As noted, the judge instructed the jury to disregard the razor blades and
decide the case based solely on the evidence admitted during the trial. We must
presume the jury followed the judge's instructions. State v. Martini, 187 N.J.
469, 477 (2006) (citing State v. Marshall, 173 N.J. 343, 355 (2002)).
VII.
Defendant contends the judge erred by denying his motion for a judgment
of acquittal notwithstanding the verdict. We disagree.
In the trial court, defendants argued that the motion should have been
granted because the jury's discovery of the razor blades was unduly prejudicial,
and the judges' instruction was insufficient. They also argued that the State
failed to prove that defendants intended to distribute cocaine. Defendants
contended that the evidence showed they intended to "bait" a prospective drug
dealer with a brick laced with cocaine, and then switch the "laced" package with
the bricks of boric acid. The judge denied the motion.
In reviewing the trial court's decision on a motion for a judgment of
acquittal, we apply the same standard the trial court must apply in ruling on the
A-0831-18 34 motion. State v. Fuqua, 234 N.J. 583, 590 (2018) (citing State v. Sugar, 240
N.J. Super. 148, 153 (App. Div. 1990)). Like the trial court, we must determine:
Whether the evidence viewed in its entirety, and giving the State the benefit of all of its favorable testimony and all of the favorable inferences which can reasonably be drawn therefrom, is such that a jury could properly find beyond a reasonable doubt that the defendant was guilty of the crime charged.
[State v. D.A., 191 N.J. 158, 163 (2007) (citing State v. Reyes, 50 N.J. 454, 458-59 (1967); R. 3:18-1).]
We are convinced that viewing the evidence in its entirety and giving the
State the benefit of all favorable testimony and inferences, the jury could have
found, beyond a reasonable doubt, that defendant was guilty of the offenses
charged in counts one, two, four, and five. As we noted previously, the judge's
curative instruction was sufficient to address any undue prejudice that could
have resulted from the discovery of the razor blades. Moreover, the State
presented substantial, if not overwhelming evidence, that defendant intended to
distribute cocaine. We therefore conclude the judge did not err by denying
defendant's motion for a judgment of acquittal.
Defendant's other arguments on this issue lack sufficient merit to warrant
further discussion. R. 2:11-3(e)(2).
A-0831-18 35 VIII.
Defendant contends the cumulative error doctrine requires reversal of his
convictions. Again, we disagree.
Under the cumulative error doctrine, the court may reverse a defendant's
conviction when "any one of several errors assigned would not in itself be
sufficient to warrant a reversal, yet if all of them taken together justify the
conclusion that defendant was not accorded a fair trial . . . ." State v. Terrell,
452 N.J. Super. 226, 308 (App. Div. 2016) (quoting State v. Orecchio, 16 N.J.
125, 134 (1954)). In this matter, we have rejected all of defendant's claims of
error. Therefore, the cumulative error doctrine does not apply.
IX.
Defendant argues that the sentence imposed by the trial court is excessive
and unfair. We disagree.
Here, the judge found aggravating factors three, N.J.S.A. 2C:44-1(a)(3)
(risk that defendant will commit another offense); six, N.J.S.A. 2C:44-1(a)(6)
(extent of the defendant's prior criminal record and the seriousness of the
offenses); and nine, N.J.S.A. 2C:44-1(a)(9) (need to deter defendant and others
from violating the law). The judge found no mitigating factors.
A-0831-18 36 The judge merged counts one (third-degree possession of CDS) with count
two (first-degree possession of CDS with intent to distribute or dispense), and
sentenced defendant on count two to a sixteen-year prison term, with eight years
of parole ineligibility. The judge also sentenced defendant to a concurrent four -
year prison term on count four (third-degree possession of imitation CDS), and
a consecutive eight-year term on count five (second-degree resisting
arrest/eluding).
On appeal, defendant contends the aggregate sentence of twenty-four
years of imprisonment, with eight years of parole ineligibility, is manifestly
unfair and excessive "given the unique facts of this case." He contends the
imposition of a fifty percent parole disqualifier on count two was excessive.
Defendant again argues the trial judge denied him of an opportunity to
present a complete defense. He asserts the judge improperly commented on the
damage caused when the Suburban crashed into the tree. He also contends the
judge failed to analyze whether a consecutive sentence should be imposed in
accordance with the guidelines in State v. Yarbough, 100 N.J. 527, 643-44
(1985).
We review the trial court's sentencing determinations "in accordance with
a deferential standard." State v. Fuentes, 217 N.J. 57, 70 (2014). "The
A-0831-18 37 reviewing court must not substitute its judgment for that of the sentencing
court." Ibid. Therefore, this court:
[M]ust affirm the sentence unless (1) the sentencing guidelines were violated; (2) the aggravating and mitigating factors found by the sentencing court were not based upon competent and credible evidence in the record; or (3) "the application of the guidelines to the facts of [the] case makes the sentence clearly unreasonable so as to shock the judicial conscience."
[Ibid. (quoting State v. Roth, 95 N.J. 334, 364-65 (1984)).]
We are convinced that the record supports the judge's finding of
aggravating factors and his determination that no mitigating factors applied. We
again note that the judge did not deny defendant of his right to present a
complete defense. In addition, the judge's comment regarding the tree was not
a significant factor in the judge's sentencing determination.
We also find no merit to defendant's contention that the judge erred by
imposing a consecutive sentence on count five. Trial judges have discretion to
determine if a sentence should be concurrent or consecutive. State v. Cuff, 239
N.J. 321, 350 (2019).
When deciding whether to impose concurrent or consecutive sentences,
the court considers the following guidelines established in Yarbough, 100 N.J.
at 643-44:
A-0831-18 38 (1) there can be no free crimes in a system for which the punishment shall fit the crime;
(2) the reasons for imposing either a consecutive or concurrent sentence should be separately stated in the sentencing decision;
(3) some reasons to be considered by the sentencing court should include facts relating to the crimes, including whether or not:
(a) the crimes and their objectives were predominantly independent of each other;
(b) the crimes involved separate acts of violence or threats of violence;
(c) the crimes were committed at different times or separate places, rather than being committed so closely in time and place as to indicate a single period of aberrant behavior;
(d) any of the crimes involved multiple victims;
(e) the convictions for which the sentences are to be imposed are numerous;
(4) there should be no double counting of aggravating factors;
(5) successive terms for the same offense should not ordinarily be equal to the punishment for the first offense . . . . [2]
2 Yarbough included a sixth guideline placing an "outer limit" on the cumulation of consecutive sentences. Id. at 644. This guideline was eliminated by an amendment to N.J.S.A. 2C:44-5(a) enacted in 1993. L. 1993, c. 223. A-0831-18 39 Here, the judge stated that under Yarbough, a consecutive sentence was
warranted because there are "no free crimes" in our system of justice. The judge
noted that the possession of the cocaine and imitation cocaine was "one thing,"
but operating the car to elude the police was "an independent act." The judge
found that a consecutive sentence was warranted for this separate, independent
offense.
On appeal, defendant argues that the judge misapplied Yarbough and erred
by imposing a consecutive sentence because his initial flight from the police was
likely the product of confusion and fear. He contends the pursuing officers
appeared suddenly in unmarked cars, forcing him to stop and blocking his
escape.
Defendant asserts his flight from the police was "an extension" of the
underlying offense of distribution of a CDS. He claims the offenses were
predominately interrelated and not independent. He contends the sentences on
counts two and five should have run concurrently.
We are convinced, however, that the judge properly considered the
Yarbough factors, and the record supports the judge's finding that defendant's
flight from the police, and the manner in which it was undertaken, was a separate
and independent offense for which a consecutive sentence was appropriate. The
A-0831-18 40 judge aptly noted that under Yarbough, "there can be no free crimes in a system
for which the punishment shall fit the crime . . . ." Id. at 644.
We conclude the judge's imposition of a consecutive sentence was not a
mistaken exercise of discretion, and the resulting aggregate sentence was not
excessive or unfair.
Affirmed.
A-0831-18 41