STATE OF NEW JERSEY VS. ROBERTO BURGOS(14-09-1449, HUDSON COUNTY AND STATEWIDE)

• Court: New Jersey Superior Court Appellate Division
• Decided: June 8, 2017
• Docket: A-0740-15T1
• Status: Unpublished

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-0740-15T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ROBERTO BURGOS,

Defendant-Appellant.

_________________________________

Submitted May 16, 2017 – Decided June 8, 2017

Before Judges Koblitz and Mayer.

On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 14-09-1449.

Joseph E. Krakora, Public Defender, attorney for appellant (Stephen P. Hunter, Assistant Deputy Public Defender, of counsel and on the brief).

Esther Suarez, Hudson County Prosecutor, attorney for respondent (Stephanie Davis- Elson, Assistant Prosecutor, on the brief).

PER CURIAM

Defendant was charged with third-degree possession of a

controlled dangerous substance (CDS), N.J.S.A. 2C:35-10(a)(1)

1 (count one); third-degree possession of CDS with intent to

distribute, N.J.S.A. 2C:35-5(a)(1), (b)(3) (count two); third-

degree possession of CDS with intent to distribute in a school

zone, N.J.S.A. 2C:35-7 (count three); and second-degree possession

of CDS with intent to distribute within 500 feet of a public park,

N.J.S.A. 2C:35-7.1 (count four). Defendant was found guilty by a

jury on all four counts. The trial judge merged counts one, two

and three with count four, and sentenced defendant to a period of

eight years, with four years of parole ineligibility. Defendant

appeals his conviction and sentence. We affirm.

On April 9, 2014, Officer Joseph Boccassini was conducting

surveillance in the area near Wayne Street in Jersey City. During

this surveillance, Boccassini observed defendant enter and exit a

store on Wayne Street several times, but noted that defendant did

not purchased merchandise. Boccassini also saw defendant talking

with several males outside the store and then walking to the side

of the building beyond his view. Boccassini suspected that

defendant was engaged in illegal drug transactions.

When defendant returned to the officer's field of view,

Boccassini saw defendant talking on his cellphone. After

defendant's cellphone conversation, Boccassini observed a red

minivan pull in front of him offering an unobstructed view into

the vehicle. Boccassini saw defendant walk to the passenger side

2 A-0740-15T1 of the minivan. When defendant reached the minivan, he produced

a translucent plastic bag containing a white powdery substance.

Defendant opened the minivan's passenger door and placed the

plastic bag inside the vehicle. Boccassini saw the driver of the

minivan, later identified as Paula Greenwood, give money to

defendant, which defendant pocketed. At that time, Boccassini

suspected the substance in the plastic bag was cocaine.

Based upon his observations, Boccassini asked his perimeter

backup units, including Officer Miguel Rivera, to respond.

Defendant and Greenwood were arrested.1

Rivera recovered the plastic bag containing the white

substance from the armrest on the minivan driver's side door.

Defendant and the State stipulated that the substance in the

plastic bag tested positive for cocaine.

At trial, the State presented Boccassini and Rivera as fact

witnesses, not expert witnesses. Boccassini testified that based

upon his training and experience, there was "no doubt" the

substance in the plastic bag produced by defendant was cocaine.

Boccassini also told the jury that he suspected the plastic bag

found in the minivan had been in defendant's possession. Rivera

testified that Boccassini advised the perimeter units via radio

1 In exchange for her testifying against defendant, the charges against Greenwood were downgraded from third-degree possession of CDS to disorderly persons possession of drug paraphernalia.

3 A-0740-15T1 "that [Boccasssini] saw a -- what he believed was a drug exchange

between a male and female sitting in a van." Rivera also testified

he believed the powdery white substance was cocaine.

Greenwood also testified for the State. According to

Greenwood, she texted defendant about purchasing cocaine and then

drove her minivan to Wayne Street to meet defendant. Defendant

came to Greenwood's vehicle, opened the passenger side front door,

and placed a plastic bag on the seat. Greenwood told the jury

that she placed a $20 bill on the seat and defendant took the

money.

When sentencing defendant, the judge found three aggravating

factors and no mitigating factors. The judge considered and

applied aggravating factors (3) risk that defendant would commit

another offense, (6) extent of defendant's prior record, and (9)

deterrence. N.J.S.A. 2C:44-1(a). The judge noted defendant's

seven prior indictable drug convictions and three prior terms of

incarceration.

On appeal, defendant raises the following arguments:

POINT I

THE POLICE OFFICERS' OPINION TESTIMONY HERE IMPROPERLY INVADED THE PROVINCE OF THE JURY AND WAS PLAIN ERROR. U.S. Const. Amends. VI, XIV; N.J. Const. Art. I, ¶¶ 1, 9, 10 (Not Raised Below).

4 A-0740-15T1 POINT II

THE IMPROPER ADMISSION OF OTHER CRIMES EVIDENCE DENIED DEFENDANT A FAIR TRIAL, U.S. Const. Amend. XIV; N.J. Const. Art. I, ¶1.

POINT III

THE IMPOSITION OF A DISCRETIONARY PERIOD OF PAROLE INELIGIBILITY WAS UNCONSTITUTIONAL AND MUST BE VACATED BY THIS COURT. U.S. Const. Amend. VI, XIV; N.J. Const. Art. I, ¶¶ 1, 12.

Defendant argues that Boccassini and Rivera offered improper

opinion testimony regarding the substance contained in the plastic

bag. We agree that the testimony of Rivera and Boccassini exceeded

the scope of permissible lay witness testimony contrary to State

v. McLean, 205 N.J. 438 (2011), but find the error was harmless

under the circumstances.

In State v. McLean, the Supreme Court delineated the line

between "factual testimony by police officers from permissible

expert opinion testimony." McLean, supra, 205 N.J. at 460. The

Court held:

On one side of that line is fact testimony, through which an officer is permitted to set forth what he or she perceived through one or more of the senses. Fact testimony has always consisted of a description of what the officer did and saw, including, for example, that defendant stood on a corner, engaged in a brief conversation, looked around, reached into a bag, handed another person an item, accepted paper currency in exchange, threw the bag aside as the officer approached, and that

5 A-0740-15T1 the officer found drugs in the bag. Testimony of that type includes no opinion, lay or expert, and does not convey information about what the officer "believed," "thought" or "suspected," but instead is an ordinary fact- based recitation by a witness with first-hand knowledge.

[Ibid. (citations omitted).]

Although not raised during the trial, defendant objects to

phrases used by the officers in their testimony that would suggest

they were offering expert witness testimony rather than fact

witness testimony.

Because there was no objection to the officers' testimony at

trial, we review defendant's claim for plain error. R. 2:10-2.

"Reversal of defendant's conviction is required only if there was

error 'sufficient to raise a reasonable doubt as to whether [it]

led the jury to a result it otherwise might not have reached.'"

State v. Atwater, 400 N.J. Super. 319, 336 (App. Div. 2008)

(quoting State v. Daniels, 182 N.J. 80, 95 (2004)). Defendant

must prove that the plain error was clear or obvious and that it

affected his substantial rights. State v. Chew, 150 N.J. 30, 82

(1997).

Here, there was overwhelming evidence in the record to support

the jury's finding of guilt. The State and defendant stipulated

that the substance in the clear plastic bag recovered from

Greenwood's minivan was cocaine, so the jury did not need to rely

6 A-0740-15T1 on the testimony of either Boccassini or Rivera to prove what was

in the plastic bag. Moreover, Greenwood's testimony was highly

incriminating. Greenwood testified that she contacted defendant

for the express purpose of buying cocaine. Greenwood also told

the jury that the plastic bag recovered from her vehicle was the

same bag given to her by defendant. Greenwood testified defendant

took the $20 bill that she placed on the seat in payment. Given

the overwhelming evidence presented to the jury, we find that the

erroneous opinion testimony provided by law enforcement did not

lead the jury to an unjust result or a result that the jury would

not have otherwise reached.

Defendant also argues the admission of other crimes evidence

deprived him of a fair trial. The alleged other crimes evidence

focused on Boccassini observing defendant speak on his cellphone,

meet with other males outside a store, and enter and exit the

store several times without purchasing merchandise. In response

to defendant's objection during the prosecutor's opening

statement, the judge ruled that defendant's observed behavior

prior to arrest was admissible and was not an allegation of a

prior illegal act.

We reject defendant's argument that Boccassini's observations

of defendant's behavior should have been excluded under N.J.R.E.

404(b) as improper "other crimes" evidence. Defense counsel failed

7 A-0740-15T1 to object to Boccassini's trial testimony. Because there was no

objection at trial, we review the matter for plain error. R.

2:10-2.

We find that the trial judge properly limited Boccassini's

testimony to his observations. Factual testimony of the type

conveyed by Boccassini, concerning observations just prior to

defendant's arrest, are admissible under N.J.R.E. 403 because the

testimony is intrinsic to the crimes charged. See State v.

Brockington, 439 N.J. Super. 311, 325 (App. Div. 2015) (citing

State v. Rose, 206 N.J. 141, 179 (2011)).

Next, we address defendant's contention that the sentencing

judge's imposition of a discretionary period of parole

ineligibility was unconstitutional. Defendant argues that the

sentence violated the United States Supreme Court's decision in

Alleyne v. United States, __ U.S. __, 133 S. Ct. 2151, 186 L. Ed.

2d 314 (2013). The holding of Alleyne pertained to a finding by

the sentencing court that the defendant had brandished a firearm

during the commission of a robbery, thus increasing his mandatory

minimum sentence under federal law from five to seven years. Id.

at ___, 133 S. Ct. at 2156, 186 L. Ed. 2d at 322. The Court held

that facts that require an increase in the mandatory minimum

sentence "must be submitted to the jury and found beyond a

reasonable doubt." Ibid. Defendant argues that the facts

8 A-0740-15T1 resulting in the imposition of a discretionary mandatory minimum

term, pursuant to N.J.S.A. 2C:43-6(b), should be found by a jury

rather than the judge.

Defendant's reliance on Alleyne in challenging the

constitutionality of the period of parole ineligibility is

misplaced for two reasons. First, the judge imposed a second-

degree sentence within the normal range expressly authorized by

statute. N.J.S.A. 2C:43-6(a); N.J.S.A. 2C:35-7.1. Second, the

aggravating factors applied by the judge were based upon

defendant's extensive prior drug convictions, as permitted by

Apprendi. Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S. Ct.

2348, 2362, 147 L. Ed. 2d 435, 455 (2000) (finding that the fact

of a prior conviction need not be submitted to a jury).

Affirmed.

9 A-0740-15T1