NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-3492-17T2
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
JOSHUA L. RODRIGUEZ, a/k/a MARQUELL RODRIQUEZ,
Defendant-Appellant.
Submitted November 14, 2019 – Decided January 29, 2020
Before Judges Alvarez and Suter.
On appeal from the Superior Court of New Jersey, Law Division, Gloucester County, Indictment No. 15-04- 0290.
Joseph E. Krakora, Public Defender, attorney for appellant (Michael James Confusione, Designated Counsel, on the brief).
Charles A. Fiore, Gloucester County Prosecutor, attorney for respondent (Jonathan E. W. Grekstas, Assistant Prosecutor, on the brief).
PER CURIAM A jury found defendant Joshua L. Rodriguez guilty of first-degree strict
liability for drug-induced death, N.J.S.A. 2C:35-9. On April 21, 2017, the trial
judge sentenced him to eighteen years subject to the No Early Release Act's
(NERA) mandatory service of eighty-five percent of the term of imprisonment.
N.J.S.A. 2C:43-7.2. Defendant appeals his conviction and sentence. We affirm.
We draw the facts from the trial record. On October 31, 2014, the victim
D.C.1 was discovered unconscious in his bedroom by his father. D.C.'s father
called 911. Beneath the victim's body, emergency personnel and police
observed a syringe and torn open blue wax folds stamped "Twitter." The items
were not collected because the authorities initially responded to the incident as
a medical emergency—the victim died, however, on the way to the hospital.
When police returned a few days later, they searched the victim's bedroom
and seized a prescription pill container, hypodermic syringe, three opened blue
wax empty heroin folds marked "Twitter," and a bundle of similar folds
containing heroin. The victim's phone contained several text messages
regarding drug buys from a person initially identified as "Mikey Engate."
1 Initials are being used to protect the privacy of the victim's family. See R. 1:1-2. A-3492-17T2 2 Woolwich Township Police Department Detective Christopher Beckett
testified that after collecting the evidence and photographing the relevant text
messages, he contacted a friend of the victim, Cody Hassler. The victim's text
messages established he had arranged for Hassler to drive him to Camden to
purchase heroin on the evening of his death. Hassler described Engate to police,
including the fact he had a barcode tattoo on the back of his neck. Beckett
matched Hassler's description of Engate with defendant, and matched the
victim's cell phone calls to defendant's phone. On the stand, Hassler denied
telling Beckett that defendant also had a tattoo on his right hand.
A Gloucester County Prosecutor's Office Detective, Anthony Gabarino,
who was not involved in the investigation, showed Hassler a photo array that
included defendant's picture. Hassler identified Engate's photo, and then
explained that Engate was a drug dealer from Camden. On the night the victim
died, Hassler drove D.C. to purchase drugs in North Camden, and in exchange
the victim gave him six bags of heroin. The victim bought three bundles of the
drug.
When shown the array, Hassler selected defendant's photo and was 100%
certain he had identified the dealer from Camden from whom the victim had
bought drugs. Because Hassler and the detective did not agree as to whether
A-3492-17T2 3 defendant's photograph was numbered seven or eight, Hassler asked to see it
again, and the detective showed it to him. On the recording of the out-of-court
identification process, the detective acknowledged that Hassler correctly
recalled the number on the photograph, but that he, the detective, got it wrong.
Hassler explained to the detective that he injected the six bags he was
given. The victim shot up three bags, but became ill. Hassler kept him awake
and another friend got him some food, after which D.C. seemed to recover.
Hassler added that all the bags that were purchased that night were stamped
"Twitter." Since D.C. seemed to be feeling alright, Hassler and the other two
people with him dropped the victim off at a liquor store within walking distance
of his home.
During her opening statement, defendant's attorney argued to the jury that
the phone number identified as belonging to the dealer from whom the victim
bought the heroin that night could not have been defendant because he was in
jail that night. Furthermore, she claimed his cell phone was a "burner phone,"
and that "it is common for one burner cell phone to be used by more than one
person [in the drug trade]." Therefore, she argued the message sent to the victim
from the phone could not be from defendant.
A-3492-17T2 4 The medical examiner testified D.C.'s death was accidental, attributable
to his consumption of heroin. His opinion, to a reasonable degree of medical
certainty, was based on tests conducted on blood and urine samples taken from
the body. He explained that the term "overdose" was not accurate—there is no
such thing as a safe level of heroin or cocaine—rather, consumption makes it a
drug-induced death, or makes death an adverse effect of the drug.
The State also called a toxicologist who testified regarding metabolites of
heroin found in the victim's blood and urine. Traces of suboxone were found in
D.C.'s urine, but they were waste products not evidential as to toxicity. When
drugs are found in urine, the body has already processed the substances and was
disposing of it. The toxicologist considered the suboxone not to be evidential
as to lethality, toxicity, or impairment because none was found in D.C.'s blood.
A different judge from the judge who tried the case began a pretrial
hearing on the out-of-court identification. He stopped the hearing, however,
when defense counsel's main objection seemed to be that she was not given the
actual video of the display of the photo array, although she had the transcripts
and the photographs in her possession. Counsel unsuccessfully argued that the
procedure was suggestive because the detective showed Hassler the photographs
twice.
A-3492-17T2 5 The judge found further proceedings were unnecessary because Hassler's
identification of defendant was unequivocal, based on prior contacts. The judge
further found that the out-of-court identification was properly recorded, and the
witness correctly instructed as to the procedure he was to follow. As the judge
said, the proofs could not be clearer. The State would be permitted to present
the out-of-court identification to the jury.
At the close of the State's case, defendant moved for acquittal contending
no reasonable juror would connect the heroin found in the victim's system with
that in the blue wax folds that Hassler claimed the victim bought from defendant.
Defendant claimed that the State's proof left a reasonable doubt that the heroin
from which the victim had died could have come from another source , because
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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-3492-17T2
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
JOSHUA L. RODRIGUEZ, a/k/a MARQUELL RODRIQUEZ,
Defendant-Appellant.
Submitted November 14, 2019 – Decided January 29, 2020
Before Judges Alvarez and Suter.
On appeal from the Superior Court of New Jersey, Law Division, Gloucester County, Indictment No. 15-04- 0290.
Joseph E. Krakora, Public Defender, attorney for appellant (Michael James Confusione, Designated Counsel, on the brief).
Charles A. Fiore, Gloucester County Prosecutor, attorney for respondent (Jonathan E. W. Grekstas, Assistant Prosecutor, on the brief).
PER CURIAM A jury found defendant Joshua L. Rodriguez guilty of first-degree strict
liability for drug-induced death, N.J.S.A. 2C:35-9. On April 21, 2017, the trial
judge sentenced him to eighteen years subject to the No Early Release Act's
(NERA) mandatory service of eighty-five percent of the term of imprisonment.
N.J.S.A. 2C:43-7.2. Defendant appeals his conviction and sentence. We affirm.
We draw the facts from the trial record. On October 31, 2014, the victim
D.C.1 was discovered unconscious in his bedroom by his father. D.C.'s father
called 911. Beneath the victim's body, emergency personnel and police
observed a syringe and torn open blue wax folds stamped "Twitter." The items
were not collected because the authorities initially responded to the incident as
a medical emergency—the victim died, however, on the way to the hospital.
When police returned a few days later, they searched the victim's bedroom
and seized a prescription pill container, hypodermic syringe, three opened blue
wax empty heroin folds marked "Twitter," and a bundle of similar folds
containing heroin. The victim's phone contained several text messages
regarding drug buys from a person initially identified as "Mikey Engate."
1 Initials are being used to protect the privacy of the victim's family. See R. 1:1-2. A-3492-17T2 2 Woolwich Township Police Department Detective Christopher Beckett
testified that after collecting the evidence and photographing the relevant text
messages, he contacted a friend of the victim, Cody Hassler. The victim's text
messages established he had arranged for Hassler to drive him to Camden to
purchase heroin on the evening of his death. Hassler described Engate to police,
including the fact he had a barcode tattoo on the back of his neck. Beckett
matched Hassler's description of Engate with defendant, and matched the
victim's cell phone calls to defendant's phone. On the stand, Hassler denied
telling Beckett that defendant also had a tattoo on his right hand.
A Gloucester County Prosecutor's Office Detective, Anthony Gabarino,
who was not involved in the investigation, showed Hassler a photo array that
included defendant's picture. Hassler identified Engate's photo, and then
explained that Engate was a drug dealer from Camden. On the night the victim
died, Hassler drove D.C. to purchase drugs in North Camden, and in exchange
the victim gave him six bags of heroin. The victim bought three bundles of the
drug.
When shown the array, Hassler selected defendant's photo and was 100%
certain he had identified the dealer from Camden from whom the victim had
bought drugs. Because Hassler and the detective did not agree as to whether
A-3492-17T2 3 defendant's photograph was numbered seven or eight, Hassler asked to see it
again, and the detective showed it to him. On the recording of the out-of-court
identification process, the detective acknowledged that Hassler correctly
recalled the number on the photograph, but that he, the detective, got it wrong.
Hassler explained to the detective that he injected the six bags he was
given. The victim shot up three bags, but became ill. Hassler kept him awake
and another friend got him some food, after which D.C. seemed to recover.
Hassler added that all the bags that were purchased that night were stamped
"Twitter." Since D.C. seemed to be feeling alright, Hassler and the other two
people with him dropped the victim off at a liquor store within walking distance
of his home.
During her opening statement, defendant's attorney argued to the jury that
the phone number identified as belonging to the dealer from whom the victim
bought the heroin that night could not have been defendant because he was in
jail that night. Furthermore, she claimed his cell phone was a "burner phone,"
and that "it is common for one burner cell phone to be used by more than one
person [in the drug trade]." Therefore, she argued the message sent to the victim
from the phone could not be from defendant.
A-3492-17T2 4 The medical examiner testified D.C.'s death was accidental, attributable
to his consumption of heroin. His opinion, to a reasonable degree of medical
certainty, was based on tests conducted on blood and urine samples taken from
the body. He explained that the term "overdose" was not accurate—there is no
such thing as a safe level of heroin or cocaine—rather, consumption makes it a
drug-induced death, or makes death an adverse effect of the drug.
The State also called a toxicologist who testified regarding metabolites of
heroin found in the victim's blood and urine. Traces of suboxone were found in
D.C.'s urine, but they were waste products not evidential as to toxicity. When
drugs are found in urine, the body has already processed the substances and was
disposing of it. The toxicologist considered the suboxone not to be evidential
as to lethality, toxicity, or impairment because none was found in D.C.'s blood.
A different judge from the judge who tried the case began a pretrial
hearing on the out-of-court identification. He stopped the hearing, however,
when defense counsel's main objection seemed to be that she was not given the
actual video of the display of the photo array, although she had the transcripts
and the photographs in her possession. Counsel unsuccessfully argued that the
procedure was suggestive because the detective showed Hassler the photographs
twice.
A-3492-17T2 5 The judge found further proceedings were unnecessary because Hassler's
identification of defendant was unequivocal, based on prior contacts. The judge
further found that the out-of-court identification was properly recorded, and the
witness correctly instructed as to the procedure he was to follow. As the judge
said, the proofs could not be clearer. The State would be permitted to present
the out-of-court identification to the jury.
At the close of the State's case, defendant moved for acquittal contending
no reasonable juror would connect the heroin found in the victim's system with
that in the blue wax folds that Hassler claimed the victim bought from defendant.
Defendant claimed that the State's proof left a reasonable doubt that the heroin
from which the victim had died could have come from another source , because
the empty bags found near his body were not seized. Furthermore, the medical
examiner did not perform an autopsy and so could not rule out causes of death
such as heart disease, strokes, or blood clots, and had no information about
D.C.'s past medical or psychiatric history. Defense counsel said that the
presence of suboxone raised the possibility that it was the suboxone, not the
heroin, that caused the death. Finally, counsel attacked Hassler's credibility,
stating that the discrepancies between different statements he made to police
cast doubt on his credibility.
A-3492-17T2 6 Giving the State all reasonable inferences, and leaving the issue of
credibility to the trier of fact, the judge found a reasonable jury could reasonably
infer that the heroin found in the victim's body came from the bundle he
purchased from defendant, while accompanied by Hassler, shortly before his
death. It was reasonable for a jury to conclude that the drugs sold to him caused
his death.
At sentencing, the judge found aggravating factors three, five, six, and
nine. N.J.S.A. 2C:44-1(a)(3), (5), (6), (9). She accorded them moderate weight
except for factor nine. She gave factor nine greater weight because of the real
potential of death from drug use, and society's interest in stopping drug
distribution. The judge found factors five, eight, and nine in mitigation,
although she gave all but five slight weight, and to five she gave moderate
weight. She denied the State's motion for a discretionary extended term. See
N.J.S.A. 2C:43-7; see also N.J.S.A. 2C:43-6(f). Thus, balancing defendant's
two prior drug-related convictions and considering his involvement in the drug
distribution world, the judge imposed an eighteen-year NERA sentence.
On appeal, defendant raises the following points for our consideration:
Point 1 The trial court erred in denying defendant's motion for acquittal of the drug-induced death charge.
A-3492-17T2 7 Point 2 The trial court erred in failing to hold a complete Wade[2] hearing and apply governing law on the admissibility of the out-of-court identification of the defendant.
Point 3 Reference to defendant having been "in jail before" caused an unfair trial for defendant below.
Point 4 The trial court erred in denying a mistrial after a discovery problem caused by the prosecution.
Point 5 Defendant's sentence is improper and excessive.
I.
Defendant's first point is that the trial judge erred in denying his motion
for acquittal. We review the decision employing the same standard as the trial
court. See State v. Fuqua, 234 N.J. 583, 590 (2018) (citing State v. Sugar, 240
N.J. Super. 148, 153 (App. Div. 1990)). After giving the State the benefit of all
favorable testimony and all favorable inferences that could be reasonably drawn
therefrom, we decide whether the evidence viewed in its entirety suffices for the
jury to find guilt beyond a reasonable doubt. Id. at 590-91.
2 U.S. v. Wade, 388 U.S. 218 (1967). A-3492-17T2 8 Strict liability for drug-induced death requires the State to prove beyond
a reasonable doubt that the drug which led to the victim's death was taken from
the packets sold to him by defendant. The State established that element of the
offense.
An officer who first arrived at the scene and an emergency technician
(EMT) saw a syringe on the ground near the victim. The EMT saw both a
syringe and empty blue wax folds. These packets had the same appearance as
the packets from the bundle stamped "Twitter" later found in D.C.'s bureau.
Hassler testified that the bundles D.C. purchased from defendant consisted
of blue wax folds stamped "Twitter." The jury heard Hassler tell Gabarino
during the recorded interview that the blue wax folds D.C. bought from
defendant were similar in appearance. A reasonable jury had a substantial basis
to conclude beyond a reasonable doubt that the drugs which ultimately led to the
victim's death were purchased from defendant. Thus defendant's motion for
acquittal was properly denied.
II.
Defendant contends on appeal that the medical examiner's testimony did
not prove that heroin consumption killed D.C. This point also lacks merit. The
A-3492-17T2 9 medical examiner stated that D.C. died as a result of his consumption of heroin,
and that the suboxone found in his urine was not the cause of death.
The toxicologist agreed—suboxone was found in decedent's urine, not his
blood, and in amounts that did not give rise to an inference of "lethality, toxicity,
or impairment." Thus, the State presented ample medical proof that D.C.'s
heroin consumption caused his death, and although defendant attacks the expert
opinions as without merit, no expert testimony was offered to refute them.
Nothing inherently makes the testimony of the two different experts, giving
essentially the same opinion, illogical or incredible.
III.
Defendant also contends that Hassler's identification of defendant did not
prove he was the seller beyond a reasonable doubt. Defendant attacks Hassler's
testimony on the basis that the details he gave were at times inconsistent. For
example, the police report stated Hassler described defendant as having a tattoo
on his right hand, when he did not. On the stand, Hassler denied saying that. It
is not, however, a detail of such consequence as to make it error for a reasonable
jury to find guilt.
Hassler's identification during the photo array was unequivocal. He had
known defendant for some time and knew him as a drug dealer. Hassler
A-3492-17T2 10 described not only defendant's general appearance but also the tattoo on the back
of his neck. Hassler identified defendant in court. Therefore, the court properly
denied the motion for acquittal based on alleged shortcomings in Hassler's
identification.
IV.
Defendant urges us to find that the court erred by not completing the Wade
hearing. But defense counsel was unable to identify even one factor establishing
any suggestiveness in the identification procedure. And to be entitled to a Wade
hearing, a defendant must first proffer "some evidence of suggestiveness" that
could result in a misidentification. State v. Henderson, 208 N.J. 208, 238, 288
(2011). No such evidence was presented, thus the identification would be
admissible at trial. See State v. Micelli, 215 N.J. 284, 293 (2013) ("If a judge
finds that the identification was not impermissibly suggestive, then the evidence
may be admitted at trial.").
When Hassler and Gabarino disagreed about the number on the photo
Hassler identified, that required the witness to be shown defendant's picture
again. Hassler was shown defendant's picture twice, a seeming impropriety, but
the reason the detective did so was his disagreement about the number on the
back of the photo. The officer merely wanted confirmation that he had entered
A-3492-17T2 11 the correct number into his notes. It was Hassler who initially identified
defendant from his photo; it was Hassler who remembered the correct number.
The record supports Hassler's identification as reliable. Nothing in the record
supports the suggestion that Hassler himself could have been the seller of the
lethal drug. The Wade hearing went far enough.
Beckett testified that after Hassler described defendant, Beckett pursued
the tip via a contact at the Camden County Police Department. Beckett further
testified that someone from Camden County identified defendant as a potential
suspect based on the description. At that point, the court immediately told the
jury to totally disregard any reference to defendant having been previously
jailed, and that the information could not be included during jury deliberations.
The judge's prompt curative instruction, striking the testimony from the
record, adequately addressed any potential prejudice. We assume that jurors
will follow instructions, and thus do not find any reference to defendant having
been in jail, or references that the jury might have construed as meaning that
defendant had been in jail, to be harmful. State v. Farmer, 366 N.J. Super. 307,
319 (App. Div. 2004) ("The jury is presumed to adhere to instructions , and we
must assume the jury followed that mandate."). When the point was raised by a
A-3492-17T2 12 witness, the judge promptly told the jury not to consider that factor. Thus there
is no basis for reversal on this issue.
VI.
Defendant also argues that the trial court erred in denying the motion for
a mistrial because of a discovery problem caused by the prosecution. In her
opening statement, counsel argued that defendant could not have been the dealer
with whom the victim was communicating because he was in jail at the time.
The prosecution had provided defense counsel with an extraction report of text
messages in which the date designation was in Greenwich Mean Time, meaning
the day was listed first, the month next, and the year last. As a result of the
manner in which the dates of the text messages were listed on the report, counsel
mistakenly thought the message regarding defendant selling drugs to the victim
was dated April 11, 2014, as opposed to October 31, 2014. In discovery, the
prosecution also informed defendant that the cell phone extraction had not
resulted in information having evidential value.
After hearing the opening statement, the prosecution explained to counsel
that she misunderstood the cell phone extraction record report. The prosecutor
also clarified there were saved messages exchanged on the relevant date between
D.C. and defendant. As a result, defendant moved for a mistrial.
A-3492-17T2 13 The first date listed on the extraction report gives the date as
"15/12/2014." This indicates a European date format and was corroborated by
the investigator's corresponding written report stating the extraction was
performed on December 15, 2014. The material was in counsel's hands some
six months before trial.
That the State represented there was no material having evidentiary value
in the cell phone extraction report is not a failure to fulfill a discovery obligation.
The issue here is not that the reports were withheld, but rather, that the State's
summary was wrong—that is not a discovery violation.
Even if counsel had relied on the report, as opposed to the original
material, counsel's argument to the jury that the phone was a burner phone that
could have been used by anyone who was a street level drug distributor, not
necessarily defendant, was unaffected by the extraction report. The text
messages between defendant and D.C. from defendant's phone were never
recovered. This argument has no merit.
VII.
We review a judge's sentencing decision under an abuse of discretion
standard asking whether: "(1) the sentencing guidelines were violated; (2) the
aggravating and mitigating factors found by the sentencing court were not based
A-3492-17T2 14 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.'" State v. Fuentes, 217 N.J. 57, 70 (2014)
(alterations in original) (quoting State v. Roth, 95 N.J. 334, 364-65 (1984)).
The judge did not violate the sentencing guidelines. The aggravating and
mitigating factors were supported by credible and competent evidence in the
record, and the judge did not err in the weight she accorded to those
considerations. We do not agree with defendant that the judge should have
further explained her rejection of mitigating factors two and thirteen. It does
not follow logically, as defendant suggests it, that a strict liability crime must
result in the judicial finding that a defendant did not contemplate that his or her
conduct would cause harm. Every drug dealer knows the harm drugs cause and
the potential for the greatest harm of all. Defendant was not a youthful offender
substantially influenced by a more mature person—nothing supports this claim.
The judge exercised her discretion by not granting the State's motion to
sentence defendant to an extended term. In light of the weight she accorded the
aggravating factors, and the lesser weight of the mitigating factors that she
found, a sentence on the higher end of the ordinary range does not shock the
judicial conscience. Roth, 95 N.J. at 364-65.
A-3492-17T2 15 Affirmed.
A-3492-17T2 16