State v. Cordero

681 A.2d 114, 293 N.J. Super. 438, 1996 N.J. Super. LEXIS 344
CourtNew Jersey Superior Court Appellate Division
DecidedAugust 27, 1996
StatusPublished
Cited by2 cases

This text of 681 A.2d 114 (State v. Cordero) is published on Counsel Stack Legal Research, covering New Jersey Superior Court Appellate Division primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Cordero, 681 A.2d 114, 293 N.J. Super. 438, 1996 N.J. Super. LEXIS 344 (N.J. Ct. App. 1996).

Opinion

The opinion of the court was delivered by

KESTIN, J.A.D.

Defendant was convicted of first degree possession of cocaine with intent to distribute, second degree conspiracy to possess cocaine with intent to distribute, and third degree possession of cocaine. The State’s motion for an extended term was granted and defendant was sentenced on the merged offenses to a forty-year term of imprisonment with twenty years of parole ineligibility consecutive to another sentence he was then serving. A $100,000 fine was imposed along with a $3,000 DEDR penalty, a $50 lab fee, and a $50 VCCB assessment. Defendant’s driving privileges were suspended for twenty-four months.

On appeal, defendant raises the following issues:

POINT I THE TRIAL COURT ERRED IN DENYING THE MOTION TO SUPPRESS
POINT II THE COURT COMMITTED PLAIN ERROR AND DENIED APPELLANT A FAIR TRIAL IN FAILING TO INSTRUCT THE JURY AS TO THE WEIGHT TO BE ACCORDED EXPERT TESTIMONY (NOT RAISED BELOW)
[441]*441POINT III APPELLANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL

We affirm.

The trial court’s denial of the motion to suppress was based upon factual findings supported by substantial credible evidence in the record. The determination is, therefore, entitled to deference. State v. Johnson, 42 N.J. 146, 160-62, 199 A.2d 809 (1964); State v. Watson, 261 N.J.Super. 169, 177, 618 A.2d 367 (App.Div.1992), certif. denied, 133 N.J. 441, 627 A.2d 1145 (1993).

Defendant’s argument that he was not afforded effective representation by trial counsel focuses upon counsel’s omission to present two fact witnesses at the jury trial. Defendant asserts that at the suppression hearing two weeks earlier the testimony of those witnesses tended to exculpate him from complicity in the drug transaction that generated the charges. Our review of the testimony discloses that it is ambiguous, not clearly exculpatory as defendant contends. That testimony might well have been regarded by trial counsel to be cumulative of and inferior to the co-defendant’s testimony at trial that characterized defendant as a bystander who “was walking by the comer [when] the police grabbed him.” Testimony from one of the arresting officers, on the other hand, identified defendant as the driver of the car involved in the drag transaction and one of the participants in the transaction itself. Defendant did not testify.

From this, there appears to be little factual basis for defendant’s argument of inadequate representation by trial counsel that would satisfy the tests of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); United States v. Cronic, 466 U.S. 648, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984); and State v. Fritz, 105 N.J. 42, 519 A.2d 336 (1987). We do not regard defendant as precluded from raising this issue on a petition for post-conviction relief, however, if he is able to develop a more persuasive basis. See State v. Preciose, 129 N.J. 451, 459-61, 609 A.2d 1280 (1992).

[442]*442As to the remaining issue on appeal, we agree with defendant that the trial judge erred in omitting to “carefully instruct the jury on the weight to be accorded to and the assessment of expert opinion testimony[,]” State v. Odom, 116 N.J. 65, 82, 560 A.2d 1198 (1989), on the issue of whether the drugs involved were possessed with the intent to distribute. Defendant failed, however, to object to the absence of such an instruction, and must satisfy plain error standards. R. 2:10-2. The lack of an objection is itself a serious omission, for if it had been lodged the trial court would have had an opportunity to remedy the omitted instruction before the case went to the jury. See R. 1:7-2; Vartenissian v. Food Haulers, Inc., 193 N.J.Super. 603, 609-10, 475 A.2d 626 (App.Div.1984); State v. Harper, 128 N.J.Super. 270, 277, 319 A.2d 771 (App.Div.), certif. denied, 65 N.J. 574, 325 A.2d 708 (1974); Grammas v. Colasurdo, 48 N.J.Super. 543, 548, 138 A.2d 553 (App.Div.1958).

Although errors or omissions in jury charges are generally poor candidates for harmless error analysis, State v. Weeks, 107 N.J. 396, 410, 526 A.2d 1077 (1987), we regard this case as an exception to the rule because of the quality and quantum of factual evidence. See, e.g., State v. Lair, 62 N.J. 388, 392, 301 A.2d 748 (1973); see also State v. Loftin, 146 N.J. 295, 354, 680 A.2d 677 (1996); State v. DiFrisco, 137 N.J. 434, 479-80, 645 A.2d 734 (1994), cert. denied, — U.S. -, 116 S.Ct. 949, 133 L.Ed.2d 873 (1996); State v. Martini, 131 N.J. 176, 285-89, 619 A.2d 1208 (1993). There is an important difference in factual character between this case and typical matters that require expert testimony to assist a jury in determining whether drugs were possessed with the intent to distribute. If a case is seen as involving recondite questions concerning the significance of the facts shown, including the manner in which the drugs were packaged, the relationship between drugs and money, the presence or absence of drug paraphernalia, the use of confederates, and other such issues, a jury may well need the assistance of expert testimony to resolve the issues and decide the ultimate factual question whether distribution was intended or not. See State v. Berry, 140 N.J. 280, 658 [443]*443A.2d 702 (1995); State v. Odom, supra, 116 N.J. at 70-71, 79-81, 560 A.2d 1198. Some cases, such as this one, are, however, considerably more straightforward factually.

We note that serious reservations have been expressed as to whether expert testimony of this type should be allowed at all because it tends to invade the jury’s province. See State v. Berry, supra, 140 N.J. at 298, 658 A.2d 702. And, although the Supreme Court has explored the subject with a focus on the trial court’s responsibilities where the State (or defendant) chooses to proffer expert testimony, see, e.g., id. at 303-04, 658 A.2d 702

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Bluebook (online)
681 A.2d 114, 293 N.J. Super. 438, 1996 N.J. Super. LEXIS 344, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-cordero-njsuperctappdiv-1996.