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State v. Irizzary


June 1, 2007


On appeal from the Superior Court of New Jersey, Law Division, Passaic County, 03-02-0111-I, 03-03-0275-I, 03-09-0826-I.

Per curiam.


Submitted May 2, 2007

Before Judges Cuff, Winkelstein and Fuentes.

A Passaic County grand jury returned three indictments against defendant. Following a trial in September 2003 on indictment no. 03-02-0111, a jury convicted defendant of third-degree possession of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-10a(1) (count one); third-degree possession of CDS with the intent to distribute, N.J.S.A. 2C:35-5a(1) (count two); and third-degree possession of CDS with the intent to distribute within 1000 feet of school property, N.J.S.A. 2C:35-7 (count three). The following month, defendant pleaded guilty under indictment no. 03-09-0826 to third-degree aggravated assault, N.J.S.A. 2C:12-1b(7); and under indictment no. 03-03-0275 to third-degree possession of CDS with the intent to distribute within 1000 feet of school property, N.J.S.A. 2C:35-7.

On December 5, 2003, the trial court sentenced defendant under all three indictments. On indictment no. 03-02-0111, the court merged counts one and two into count three and sentenced defendant to a five-year term of imprisonment with a three-year period of parole ineligibility. On indictment no. 03-03-0275, the judge imposed a three-year term of imprisonment with a nine-month period of parole ineligibility, concurrent to the sentence on indictment no. 03-02-0111. On indictment no. 03-09-0826, the judge sentenced defendant to three years flat, concurrent to the other sentences. He also imposed a six-month license suspension on indictment no. 03-02-0111 and a concurrent twelve-month license suspension on indictment no. 03-03-0275.

On appeal, defendant raises the following legal arguments:











We have carefully reviewed the record in light of these contentions and the applicable law. Defendant's arguments in points one and three are without sufficient merit to warrant a reversal of his conviction. We find merit to defendant's arguments in points two and four, and conclude that the cumulative errors warrant reversal of defendant's conviction. Defendant's sentencing argument in point five is therefore rendered moot.


Paterson police Detective Manuel Avila and his partner, Detective John Contini, were on duty June 4, 2002, when, at 6:30 p.m., responding to information they had received, they went to 409 Graham Avenue, also known as Rosa Parks Boulevard. The area surrounding the location was known for narcotics activity, and Avila had made numerous narcotics-related arrests there. Though the officers were in an un-marked car, it was readily identifiable as a police vehicle.

When the detectives arrived, Avila noticed a male, later identified as defendant, standing in front of the building located at the address. Defendant appeared to notice the officers. He placed his right hand in his right pants pocket, immediately removed his hand, made a motion as if he was dropping something to the side, and walked up a few steps leading to the building's porch. Based on the information the officers had received and upon defendant's discarding an object upon the officers' approach, Avila concluded that defendant had discarded illegal drugs. At the time Avila saw defendant discard the object, it was light out, defendant was approximately thirty-eight feet away, Avila's field of vision was unobstructed and he could see defendant's face. No one else was near defendant at the time.

Avila got out of the vehicle and recovered the discarded object, a plastic sandwich bag; inside were seventeen small plastic baggies containing a substance Avila believed to be cocaine. Field and lab testing confirmed that the substance was cocaine. The police also found $158 on defendant's person.


We first address defendant's argument that the judge's failure to declare a mistrial when he learned that a sheriff's officer had excluded defendant's girlfriend from the courtroom during jury selection deprived defendant of his right to a public trial. A criminal defendant has the right to a public trial under the Sixth Amendment to the United States Constitution and article I, paragraph 10 of the New Jersey Constitution. State v. Cuccio, 350 N.J. Super. 248, 260 (App. Div.), certif. denied, 174 N.J. 43 (2002). This right applies to all phases of the trial, including jury selection. Ibid. The right is not, however, absolute. Ibid. "The presumption of openness may be overcome . . . by an overriding interest based on [the trial judge's] findings that closure is essential to preserve higher values and is narrowly tailored to serve that interest." Ibid. A conviction is subject to automatic reversal if a public trial is not provided; in that case, a defendant need not prove specific prejudice to obtain relief. Id. at 261.

Cuccio is instructive. There, the trial court had closed the courtroom during jury selection, and had ordered family members of both the defendant and the victim to leave the floor where the courtroom was located; the judge allowed the families back in after the jury was selected. Id. at 257-59.

[The] closure lasted a full day and continued over into the next morning until jury selection was concluded. It occurred during a critical phase of the trial; it was not inadvertent; and no action by counsel or the court could restore the deprivation. . . . the scope of the closure was substantial, rather than de minimis. [Id. at 268.]

We found that the trial judge had failed to give "due regard to the imperatives of the public trial requirement by considering alternatives to closing the jury selection process"; that he had failed to establish that an "unavoidable need" existed for the steps he took; and that he had not narrowly tailored the closure order. Id. at 267. The court's perceived need to "keep the peace" between the families of the defendant and the victim was not "adequately supported in fact." Ibid.

Not every closure, however, equates to a constitutional violation requiring a reversal of the defendant's conviction. In Peterson v. Williams, 85 F.3d 39, 41-44 (2d Cir.), cert. denied, 519 U.S. 878, 117 S.Ct. 202, 136 L.Ed. 2d 138 (1996), the Second Circuit found that a constitutional violation did not arise from a fifteen to twenty-minute closure during the defendant's testimony because the closure was "extremely short, . . . was followed by an informative summation [recapping the missed testimony], and . . . was entirely inadvertent." Cuccio, supra, 350 N.J. Super. at 268. The case presented a situation where an unjustified closure was "too trivial to amount to a [constitutional] violation." Ibid.

Here, defendant recalled that his girlfriend was with him throughout the trial and was removed from the courtroom during jury selection for approximately thirty minutes. Neither the judge, the attorneys, nor the sheriff's officers recalled the specifics of the incident. Nevertheless, accepting defendant's contentions as true, the judge ruled that the removal "[was] brief and inconsequential under the totality of the circumstances."

We agree. Even giving full credit to defendant's account of what occurred, any closure was de minimis and did not constitute a constitutional violation. Defendant's girlfriend was not barred from the entire span of jury selection, nor was the courtroom entirely closed -- she was the only person excluded. The closure was "trivial" under the circumstances. See Peterson, supra, 85 F.3d at 41-44. The closure did not occur at the direction of the court. The scope and duration of the closure were not of sufficient consequence to constitute a violation of defendant's right to a public trial.


Defendant argues that the trial court erred by prohibiting defense counsel from showing the two defense witnesses a photograph of a man who defendant maintained actually committed the crimes. The court reasoned that the photograph looked like a mug shot and would be unduly prejudicial. Defendant argues that the court hampered his third-party guilt defense by barring the use of the photograph.*fn1

On direct examination, defense witness Frank Pena, the stepfather of defendant's girlfriend, was asked to identify the people outside his house around the time of defendant's arrest:

A: Well, there was . . . a lot of people outside . . . .

Q: Who did you see outside the house?

A: Well, it was the boyfriend [defendant] of my stepdaughter, my younger stepson, and a few other[s] . . . .

Q: Was a person by the name of Juan Valez there?

A: Well, I don't know. There was another guy, but I don't know him by either Juan Valle or Juan Valez; I don't know.

Q: Could you identify him if you saw a picture of him?

Following an objection by the prosecutor, defense counsel indicated he was not going to provide the name of the person in the picture, but would simply show the picture to the witness and ask the witness if he recognized the person. The court responded that "instead of showing pictures," it would be "more appropriate" to ask the witness to "please describe what this person looked like." According to the judge, the picture certainly looks like a mug shot and that's now conveying a subliminal message to a jury . . . . [that] [t]his is a criminal, and he's the one the people saw over there.

That's not a picture of him in a business suit or anything like that.

. . . I'll direct [that the picture] should not be shown . . . [on] direct examination [either] to this witness or the next witness, because I think that it could have in this case prejudicial . . . effect with regard to the State's case, the same way that I'd be concerned about [the] prejudicial effect of the defendant['s] . . . mug shot . . . it carries with it lots of suggestiveness.

. . . it can unduly influence the jury.

The court's decision was couched in the language of undue prejudice. "[R]elevant evidence may be excluded if its probative value is substantially outweighed by the risk of . . . undue prejudice, confusion of issues, or misleading the jury." N.J.R.E. 403. The rule gives the court the discretion to exclude otherwise admissible evidence. Benevenga v. Digregorio, 325 N.J. Super. 27, 32 (App. Div. 1999), certif. denied, 163 N.J. 79 (2000); Biunno, Current N.J. Rules of Evidence, comment 2 on N.J.R.E. 403 at 372 (2007) (admissibility of evidence under this rule falls largely within the court's broad discretion); see alsoState v. Torres, 183 N.J. 554, 567 (2005) (noting generally the trial court's discretion as to the admission of evidence). Accordingly, appellate courts review decisions regarding the admission of evidence for abuse of discretion. State v. Harvey, 151 N.J. 117, 166 (1997), cert. denied, 528 U.S. 1085, 120 S.Ct. 811, 145 L.Ed. 2d 683 (2000). Traditional rules of appellate review require substantial deference to a trial court's evidentiary rulings. Benevenga, supra, 325 N.J. Super. at 32.

Courts must provide every defendant with a meaningful opportunity to present a complete defense, which includes the right to introduce evidence of third-party guilt. State v. Cotto, 182 N.J. 316, 332 (2005). This right is of constitutional dimension. State v. Jimenez, 175 N.J. 475, 486 (2003). A defendant's proof of third party guilt must have a rational tendency to engender a reasonable doubt with respect to an essential feature of the State's case. Cotto, supra, 182 N.J. at 332. A defendant need not provide evidence that substantially proves the guilt of another, but must introduce proofs capable of establishing some link between the third-party and the crime. Id. at 333. Whether a substantive link is established requires a fact-sensitive inquiry. Ibid. Thus, trial courts retain broad discretion to admit or preclude evidence of third-party guilt, and an appellate court will reverse only if the defendant can establish an abuse of that discretion. Ibid.

Here, the court's decision to bar the photograph was not an abuse of discretion. The evidence a defendant seeks to admit must have a rational tendency to engender a reasonable doubt with respect to an essential feature of the State's case and must be capable of establishing a link between the third party and the crime beyond "mere conjecture." Id. at 332-33. The evidence here simply does not meet that test.

Defendant's theory of third-party guilt was weak. No witness testified that the man in front of the porch was a drug dealer or that the drugs recovered belonged to him. The introduction of the photograph could only have demonstrated that the man in the photograph was the man standing in front of the porch. The photograph, which the court concluded looked like a "mug shot," would have served to create in the jurors' minds the suspicion that the man was in fact a criminal, but would not have demonstrated a link between him and the crime. Consequently, the court's exclusion of the photograph under N.J.R.E. 403 was not an abuse of discretion.


Next, we turn to defendant's argument that the court erred by permitting Detective Avila to twice testify concerning "information received." Because no objection was raised at trial, we review for plain error. See R. 2:10-2 (when no objection raised at trial, reversal is warranted only where the error is "of such a nature as to have been clearly capable of producing an unjust result.").

First, in response to a question from the prosecutor, Avila, the State's only witness, testified that "based on information received . . . [he] respond[ed] to a certain location in Paterson." Second, when asked why he suspected that an object discarded by defendant was a controlled dangerous substance, he replied that he based his opinion "first of all, [on] the information [he had] received."

The "Confrontation Clause," contained in the Sixth Amendment to the federal constitution and article I, paragraph 10 of the state constitution, guarantees a criminal defendant the right to confront the witnesses against him. State v. Branch, 182 N.J. 338, 348, 349 (2005). The right to confrontation is an essential attribute of a fair trial that a defendant exercises through cross examination. Id. at 348. The Confrontation Clause, like the rules of evidence prohibiting hearsay, protects a defendant from the "incriminating statements of a faceless accuser who remains in the shadows and avoids the light of court." Ibid. Yet it does not condemn all hearsay; an established and recognized exception to the hearsay rule will not necessarily run afoul of the Confrontation Clause. Id. at 349 (citing Crawford v. Washington, 541 U.S. 36, 51, 56, 124 S.Ct. 1354, 1364, 1367, 158 L.Ed. 2d 177, 192, 195 (2004)).

Both the Confrontation Clause and the hearsay rules are violated where, at trial, a police officer conveys, directly or by inference, information from a non-testifying declarant incriminating the defendant. Id. at 350, 351, 353. The phrase "based on information received" may be used by police officers to explain their actions, but only if necessary to rebut a suggestion that they acted arbitrarily and only if use of the phrase does not create an inference that the defendant has been implicated in a crime by some unknown person. Id. at 352. It is permissible, for example, for an officer to testify that he went to the scene of a crime based "upon information received." Id. at 351 (citing State v. Bankston, 63 N.J. 263, 268 (1973)).

The Confrontation Clause was violated in Branch, supra, where a detective testified that he included the defendant's photo in an array shown to witnesses "based on information received." Id. at 347, 352-53. The detective implied he had information from an out-of-court source, know only to him, implicating defendant in the crime. Id. at 352-53.

It is permissible, however, for a police officer to state that he went to a location based on information received. Id. at 351. Here, the first statement challenged, which pertained to the reasons the officers went to the particular location where they observed defendant, falls within this category, and consequently, does not offend the Confrontation Clause.

The detective's second reference to "information received," however, was directed to the reason he suspected that defendant had discarded illegal drugs. He testified that he believed that the object he had observed defendant discard was drugs because of, "first of all, the information [he had] received." This presents the danger that Branch cautioned against - the detective's testimony implied that he was privy to outside-the-record knowledge that defendant was holding drugs, which caused him to view a potentially innocuous movement as an indication of criminal activity. Thus, defendant's right to confront his accusers was violated by the second challenged portion of testimony. The admission of this testimony, when considered cumulatively with the court's improper admission of Detective Avila's opinion testimony, as we will discuss in point five of this opinion, was clearly capable of producing an unjust result and requires a reversal of defendant's conviction. See State v. Marshall, 123 N.J. 1, 169 (1991) (even if errors individually harmless, cumulative effect may require reversal of a defendant's conviction).


We turn to defendant's claim that the court improperly permitted Detective Avila to offer what amounted to expert testimony regarding the modus operandi of drug dealers, without qualifying him as an expert. The State had originally intended to call another detective to provide expert testimony on that issue, but following an objection by defense counsel to the State supplying the expert's report on the eve of trial, the prosecutor agreed not to call the other officer; he instead chose to rely on the arresting officer's training and experience to prove that defendant possessed the drugs with the intent to distribute them.

Prior to trial, the court ruled that Avila could testify as to that issue pursuant to N.J.R.E. 701. The judge's view of it . . . [was] that [N.J.R.E.] 701 and [N.J.R.E.] 702 permit an experienced narcotics officer, like Manuel Avila, to . . . testify in the form of opinions with regard to the nature of street dealing and what . . . packaging or volume or weight may indicate as to narcotics and their intended uses. . . . [I]t's testimony from a lay witness with some specialized knowledge.

At trial, defense counsel again raised an objection to Avila offering opinion testimony on the issue of possession of CDS with the intent to distribute. The court overruled the objection, stating:

[N.J.R.E.] 701 permits testimony by a lay witness with specialized knowledge such as Detective Avila upon establishing that he has the requisite training and background and experience to aid the jury in understanding the facts by offering an explanation, offering opinions regarding what a substantial amount of drugs, what packaging of drugs may mean in terms of whether drugs are possessed for personal use or for an intent to distribute.

. . . Trent[a]cost v. Brussel[, 164 N.J. Super. 9 (App. Div. 1978), aff'd, 82 N.J. 214 (1980)] . . . In that case, . . . an officer who investigated between 75 and 100 crimes in a particular neighborhood over a three-year period may offer an opinion that a neighborhood is a high-crime area. . . .

. . . I think that it is appropriate to allow Detective Avila to explain what his background and training and experience is, and to offer opinions regarding street level dealing based on that. I think that it is unnecessary and indeed it's pointless, somewhat redundant, to have someone like Detective Trommelin come in who was not at the scene, who has . . . experience and [a] background very similar to Detective Avila's in this field, to . . . based on reading Detective Avila's report, come in and say, in my opinion this packaging, et cetera, et cetera, was intended for distribution. I see no reason whatsoever under [N.J.R.E.] 701 why Detective Avila can't do that himself.

. . . I think that that type of testimony is admissible, including opinions, on such things as what the packaging meant or what the weight meant, or . . . what the neighborhood was like, based on his experience.

The witness testified to his experience in law enforcement, which included over 4000 narcotics-related investigations and arrests in his sixteen years as a police officer and his nine years as a narcotics detective. During his career, through both formal and on-the-job training, he learned how narcotics are packaged and sold for street level sale in Paterson.

The detective testified that in his experience, it was not unusual for people holding drugs to discard them upon the approach of police, believing that they cannot be charged with a crime if they are not holding the drugs when arrested. He said it was not unusual, after a narcotics arrest, to find a large amount of "paper currency" on a suspect; this cash represents "drug proceeds . . . from previous sales." When a drug dealer is arrested, police usually find not only money on his or her person, but also drugs packaged for distribution. Usually, drug buyers have no money on them when they are arrested as they have spent it all on drugs; however, they are normally arrested carrying a small amount, one or two bags, of drugs.

Avila testified that drug dealers typically stand on the street waiting for buyers, and hand-to-hand transactions in public are not unusual. He further opined that the seventeen baggies recovered in connection with defendant's arrest would be priced differently if bought separately than if purchased in bulk, and that sellers, but not buyers, will frequently purchase in bulk. Avila also testified that buyers do not normally "buy a lot of cocaine all at once just for themselves."

N.J.R.E. 701, "Opinion Testimony of Lay Witnesses," provides that "[i]f a witness is not testifying as an expert, the witness' testimony in the form of opinions or inferences may be admitted if it (a) is rationally based on the perception of the witness and (b) will assist in understanding the witness' testimony or in determining a fact in issue." N.J.R.E. 702, "Testimony by Experts," states that "[i]f scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise."

In general, lay opinion testimony may not cross into the realm of expert testimony. Biunno, supra, Current N.J. Rules of Evidence, comment 4 on N.J.R.E. 701 at 840. Nevertheless, if the subject of the testimony does not require complex scientific or technical knowledge, or if the witness possesses sufficient qualifications to have testified as an expert, any error in allowing the lay "opinion" may be deemed harmless. Biunno, supra, Current N.J. Rules of Evidence, comment 4 on N.J.R.E. 701 at 841 (citing State v. Kittrell, 279 N.J. Super. 225, 235-36 (App. Div. 1995)).

"Courts in New Jersey have permitted police officers to testify as lay witnesses, based on their personal observations and their long experience in areas where expert testimony might otherwise be deemed necessary." State v. LaBrutto, 114 N.J. 187, 198 (1989). For instance, in Trentacost, supra, relied on by the trial court, a police detective who testified as a fact witness also opined that a neighborhood was a high crime area. 164 N.J. Super. at 19-20. His opinion was permissible under Evid. R. 56(1), the forerunner to N.J.R.E. 701, as it was based on his "factual recital" that over the course of three years, seventy-five to one hundred crimes had occurred in the area. Id. at 20.

Also instructive are decisions regarding expert testimony explaining how drug dealers typically operate. In State v. Odom, 116 N.J. 65, 69 (1989), an expert testified that where eighteen vials of crack, but no drug paraphernalia, were recovered from the defendant's apartment, the defendant possessed the drugs with the intent to distribute them. The Court noted that expert testimony is admissible if it relates to a relevant subject that is beyond the understanding of the average person and if it would help the jury understand the evidence presented and determine the facts. Id. at 71. Upholding the admission of the testimony, the Court concluded that "intent or purpose in connection with the possession of unlawful drugs is a matter of specialized knowledge of experts." Id. at 76.

In State v. Berry, 140 N.J. 280, 301 (1995), an expert offered "essentially . . . modus operandi expert testimony . . . to assist the jury's understanding of techniques used by . . . drug dealers." The witness testified to "specific facts . . . about which the jury undoubtedly was uninformed." Id. at 301- 02. The expert's testimony that dealers often use juvenile "mules" to carry drugs so as to avoid criminal liability themselves aided the jury in understanding the significance of the fact that drugs and paraphernalia were found on a juvenile passenger in the defendant's car. Id. at 284-86, 302.

State v. Nesbitt, 185 N.J. 504 (2006), presents a similar situation. The defendant was charged with possession with intent to distribute crack-cocaine but did not personally hold the drugs, give them to the buyer, or accept payment; he instead directed a confederate to do so. Id. at 508-09. The expert's testimony that the defendant was complicit in selling drugs and that the process utilized was "common[] . . . in a street-level distribution network" where dealers "utiliz[e] a runner," did not "explain the plainly obvious to the jury." Id. at 510, 515. As members of the public called to serve as jurors are not usually versed in the sales methods of crack dealers, the expert assisted the jury in understanding how the conduct of the defendant, taken in conjunction with that of his confederate, could be indicative of drug distribution. Id. at 515.

Against this background, we conclude that the testimony at issue here exceeded the scope of lay opinion testimony. Like the testimony in Trentacost, supra, 164 N.J. Super. 19-20, this testimony was based on personal experience and observation.

However, unlike the testimony in that case, the testimony here involved "specialized knowledge" based upon Avila's training and experience as a police officer. See Kittrell, supra, 279 N.J. Super. at 236; N.J.R.E. 702. The experience relied upon by Avila to offer his opinion is of the kind that a lay person cannot acquire -- it was developed through sixteen years as a police officer and through active involvement in thousands of narcotics investigations and arrests.

Like the testimony in Kittrell, supra, 279 N.J. Super. at 236, the testimony here was "more akin to expert testimony." The type of testimony offered by Avila regarding the regular habits and practices of drugs dealers is more properly considered expert testimony, as it speaks to matters beyond the realm of knowledge of the average juror and is based on the witness's specialized expertise and knowledge. The testimony here helped explain that certain facts, which the jury might otherwise ignore or not attach any special significance to, were in fact significant in proving defendant's criminal liability. For instance, Avila testified that drug dealers, unlike buyers, buy drugs in bulk quantities and are often arrested carrying cash. This testimony helped explain to the jury the significance of the fact that defendant was arrested carrying cash, and the significance of the fact that the police recovered a bulk quantity of drugs.

The testimony was not lay opinion testimony, it was expert opinion testimony from a lay witness. In other words, the court permitted a lay witness to testify as would have an expert, in the absence of an expert's report, and in the absence of permitting defense counsel an appropriate opportunity to voir dire the witness.

It is also significant that the court did not provide the jury with an appropriate jury charge on expert testimony. See Model Jury Charges (Criminal) "Expert Testimony" (Nov. 10, 2003). In criminal cases, accurate and understandable jury instructions are essential to a defendant's right to a fair trial. State v. Concepcion, 111 N.J. 373, 379 (1988). The trial court has an absolute duty to instruct the jury on the law governing the facts of the case. Ibid. The charge must provide a comprehensible explanation of the questions the jury must determine, and should be tailored to the particular case at hand. Ibid. When evaluating the propriety of a jury charge, an appellate court examines the charge as a whole. Id. at 376. "Errors impacting directly upon these sensitive areas of a criminal trial are poor candidates for rehabilitation" under the plain error theory. State v. Simon, 79 N.J. 191, 206 (1979).

Failure to honor proper charging requests will ordinarily be deemed prejudicial where the subject matter is fundamental and essential or is substantially material to the trial. State v. Green, 86 N.J. 281, 291 (1981).

Here, the testimony of the witness was important to demonstrate that defendant's conduct constituted possession with intent to distribute, a component of two of the three charges in the indictment. The opinion testimony had a critical role in proving defendant's culpability. It was substantially material to the State's case against defendant. Consequently, permitting the jury to hear expert testimony couched as lay opinion without the safeguards typically provided to assure that the jury understands its role in its consideration of expert testimony, when considered cumulatively with the error we discussed in point four of this opinion, warrants reversal of defendant's conviction.

Reversed and remanded for further proceedings.

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