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State v. Velez

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


June 26, 2007

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
DOMINGO G. VELEZ, DEFENDANT-APPELLANT.

On appeal from Superior Court of New Jersey, Law Division, Salem County, Indictment No. 05-09-0320.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted June 6, 2007

Before Judges Winkelstein and Fuentes.

Defendant Domingo G. Velez was tried before a jury and found guilty of third-degree distribution of heroin, N.J.S.A. 2C:35-5a(1), and third-degree possession of heroin, N.J.S.A. 2C:35-10a(1). The court merged the possession conviction with the distribution charge, and sentenced defendant to an extended term of seven years, with three years of parole ineligibility. The court also imposed the mandatory fines and penalties.

Defendant raises the following arguments on appeal.

POINT ONE

TELLING THE JURY TO "SEARCH FOR THE TRUTH" OMITTING FROM THE CLOSING CHARGE THE COMPARISON BETWEEN THE PREPONDERANCE OF THE EVIDENCE AND REASONABLE DOUBT STANDARDS, AND USING DIFFERENT LANGUAGE TO DESCRIBE OTHER PARTS OF THE STATE'S REASONABLE DOUBT BURDEN VIOLATED DEFENDANT'S STATE AND FEDERAL DUE PROCESS RIGHTS, JURY TRIAL RIGHTS, AND RIGHTS TO A FAIR TRIAL (Not Raised Below).

POINT TWO

COMBINED WITH THE IMPROPER "SEARCH FOR THE TRUTH" COMMAND AND OMISSION FROM THE CLOSING CHARGE OF THE PREPONDERANCE OF THE EVIDENCE AND REASONABLE DOUBT COMPARISON, THE PROSECUTOR FURTHER ATTEMPTED TO SHIFT THE BURDEN OF PROOF TO DEFENDANT BY TELLING THE JURY THAT DEFENDANT'S COUNSEL NEVER ONCE STATED THAT DEFENDANT "DIDN'T DO IT" (Raised Below).

POINT THREE

THE TRIAL COURT PREJUDICED DEFENDANT'S RIGHT TO A FAIR TRIAL BY PERMITTING THE PROSECUTOR TO ELICIT THE BACKGROUND, CREDENTIALS, AND WORK HISTORY OF THE POLICE OFFICERS TESTIFYING AGAINST DEFENDANT (Not Raised Below).

POINT FOUR

THE COURT SHOULD REMAND FOR RESENTENCING BECAUSE DEFENDANT'S SENTENCE IS IMPROPER AND EXCESSIVE.

We reject the arguments attacking defendant's conviction. We are satisfied, however, that the extended term sentence imposed by the court violated the guidelines articulated by the Supreme Court in State v. Pierce, 188 N.J. 155, 168 (2006). We are thus compelled to vacate the sentence and remand the matter for re-sentencing.

At the time of defendant's arrest, Vineland Detective Gami Cruz was assigned to the Narcotics Task Force of the Cumberland County Prosecutor's Office. As part of a law enforcement initiative targeting illicit drug trafficking, Cruz was dispatched, in an undercover capacity, to attempt to purchase illegal narcotics. Specifically, on June 8, 2005, Cruz was sent to a rooming house located at 38 Cumberland Avenue, in Vineland. As soon as he entered room seven, Cruz "approached the female that was there and she directed me over to [a man] that was sitting on he bed, and I just asked him if I could buy some heroin."

According to Cruz, this man, subsequently identified as defendant, asked him for $20 before he would produce any heroin. When Cruz complied, defendant reached into what appeared to be "a green can of soda crackers" full of rice, and handed him a "white wax paper bag" with a "911" marking on the back. The contents of the bag tested positive for heroin. Defendant was not arrested at that time. Weeks later, Cruz identified defendant as the seller from a photographic array prepared by fellow detectives based on the physical description Cruz provided.

In addition to Cruz's testimony, the State called a number of other police witnesses who described the nature and scope of the undercover operation. Defendant also notes that, as part of his direct examination of these witnesses, the prosecutor asked detailed questions concerning the officers' professional experience and background. According to defendant, this information lacked direct probative value, and was intended by the State to improperly bolster the witness's credibility.

Defendant argues that the trial judge improperly deviated from the model jury charge on reasonable doubt, by: (1) failing to contrast the reasonable doubt standard with the preponderance of the evidence standard used in civil cases; (2) by instructing the jury that reasonable doubt does not mean "an absolute certainty;" and (3) by instructing the jury that reasonable doubt can arise "if you feel there's a lack of evidence."

After carefully reviewing the trial court's jury charge on reasonable doubt, we find no basis to reverse. First, we note that defense counsel did not object to the charge at the time it was given by the court. We thus review this issue on the plain error standard. State v. Bunch, 180 N.J. 534, 541 (2004); R. 2:10-2. Under this standard of review, a defendant must demonstrate that the legal impropriety in the charge was so grievous, that it had the clear capacity of bringing about an unjust result. State v. Chapland, 187 N.J. 275, 289 (2006).

Here, the charge given by the court, as whole, tracked the model charge in all key respects. State v. Medina, 147 N.J. 43, 61 (1996), cert. denied, 520 U.S. 1190, 117 S.Ct. 1476, 137 L.Ed.2d 688 (1997). Notwithstanding this conclusion, we remind the trial court of our Supreme Court's recent admonition that trial judges should not deviate from the definition contained in Medina. State v. Wakefield,_____ N.J. _____, _____ (2007) (slip op. at 117).

We turn next to defendant's arguments relating to the prosecutor's comments, made in the course of his summation, that defense counsel had not mentioned "in [his] entire argument" that his "client didn't do it." The trial court sustained defense counsel's timely objection, and, at defense counsel's request, gave a curative instruction to the jury.

As a starting point, we agree with defendant that this comment was improper and should not have been uttered by the prosecutor at any time during the trial. The fact that the prosecutor made such a comment shows a shocking misapprehension of a rudimentary constitutional principle. That being said, however, we are satisfied that the remark was an isolated incident that was properly addressed by the trial court. As such, the statement did not have the capacity of depriving defendant of his right to a fair trial. State v. Papasavvas, 163 N.J. 565, 625 (2000).

Finally, the extended term sentence imposed by the court of seven years with three years of parole ineligibility must be vacated pursuant to Pierce. On remand, the trial court must consider the question of an appropriate extended term sentence without regard to a presumptive starting point. Pierce, supra, 188 N.J. at 170.

Defendant's conviction is affirmed. The matter is remanded for re-sentencing.

20070626

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