August 24, 2007
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
HUNTLEY PATRICK PEARCE, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Criminal Part, Bergen County, 98-06-1091-I.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: April 17, 2007
Before Judges Kestin, Payne and Lihotz.
Four persons were charged in an eighteen-count Bergen County indictment,*fn1 handed down on June 9, 1998: Jesus Fernando Zamudio, Debbie Moore, Huntley Patrick Pearce, and Jesus Fuentes. Defendant, Huntley Patrick Pearce, was charged, in count ten, with first-degree possession of marijuana in a quantity of twenty-five pounds or more, N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(10)(a); in count eleven, with second-degree conspiracy to possess a controlled dangerous substance with intent to distribute, N.J.S.A. 2C:5-2; and in count fifteen, with fourth-degree possession of marijuana, N.J.S.A. 2C:35-10a(3). Defendant was also charged, in counts twelve and thirteen, with two instances of third-degree endangering of a child, N.J.S.A. 2C:24-4a; and, in count fourteen, with a single instance of second-degree endangering.
In June 2000, after the case went to the jury in the trial of the charges against defendant and Moore, defendant fled the State. On the second day of its deliberations, the jury returned a guilty verdict on all counts. Following rendition of the verdict, the trial court issued a bench warrant for defendant's arrest. In August 2005, defendant was arrested in California on the basis of the warrant and he was returned to New Jersey.
Defendant came before the trial court for sentencing on October 21, 2005. For the first-degree crime and the merged crimes of conspiracy and fourth-degree possession of CDS, the trial court imposed a prison term of eighteen years with eight years of parole ineligibility. For the second-degree endangering conviction, the court imposed a consecutive eight-year prison term with three years of parole ineligibility. Each of the third-degree convictions for endangering drew a concurrent four-year term. The customary assessments, penalties, and fees were ordered.
On appeal, defendant raises the following issues:
PEARCE IS ENTITLED TO A JUDGMENT OF ACQUITTAL BECAUSE THE EVIDENCE AT TRIAL WAS LEGALLY INSUFFICIENT TO ESTABLISH THE ELEMENT OF KNOWLEDGE OF THE SPECIFIC UNLAWFUL PURPOSE CHARGED IN THE INDICTMENT.
PEARCE IS ALSO ENTITLED TO A JUDGMENT OF ACQUITTAL ON THE CHARGES OF ENDANGERING BECAUSE THE EVIDENCE FAILS TO ESTABLISH KNOWLEDGE OF CRIMINAL ACTIVITY.
THE COURT IMPROPERLY EXCLUDED A STATEMENT BY AN ALLEGED CO-CONSPIRATOR EXCULPATING PEARCE.
THE COURT ERRED IN PERMITTING THE EXPERT WITNESS TO SPECULATE WHAT PEARCE MIGHT HAVE DONE IN THE FUTURE.
THE SENTENCING COURT, BY IMPOSING CONSECUTIVE SENTENCES, EACH OF WHICH EXCEEDED THE PRESUMPTIVE SENTENCE, AND THEN SETTING PAROLE DISQUALIFIERS, IMPOSED A MANIFESTLY EXCESSIVE SENTENCE THAT MUST BE VACATED.
The facts of the matter had a beginning in Kansas, when a State Trooper stopped a motor vehicle for a traffic offense. The driver, Renee Grammar, stated that she was en route from Arizona to New Jersey in the rented Chevrolet Lumina. The trooper's suspicions were aroused by the circumstances and the conduct of the driver and he obtained her consent to open the trunk. Large bales of marijuana were discovered, weighing some 261 pounds.
Grammar then agreed to cooperate with federal drug enforcement agents in a controlled delivery of the marijuana to two men, Zamudio and Fuentes, who had hired her in Arizona to deliver the marijuana to them in New Jersey. Over the next few days, Grammar drove to New Jersey accompanied by officers, keeping in contact with Zamudio and Fuentes by telephone calls every four hours.
The cooperation of New Jersey police personnel was enlisted, and, after Grammar and the agents arrived in this State, a surveillance was set up at the planned drop-off point, a hotel in Fort Lee. Grammar telephoned that she had arrived. Shortly thereafter, a white BMW arrived in the hotel parking lot. Defendant, Moore, Zamudio and three children were in the car. Zamudio went into the hotel and returned a few minutes later, getting into the back seat of the BMW. Moore then drove the BMW across the parking lot and stopped next to the Lumina. She stepped out of the BMW with one of the children and entered the Lumina. Defendant exited the passenger side of the BMW and took Moore's place behind the wheel. An arrest of all participants was then made. Fuentes was arrested at the hotel later the same day.
A search of defendant revealed a pager and an address book. When one of the officers called the telephone number that Grammar had used to keep in contact with Zamudio and Fuentes, the beeper activated. The address books contained telephone numbers associated with Zamudio, as well as other information signifying defendant's involvement.
The first two points on appeal address the weight of the evidence. Because defendant did not move before the trial court for a new trial, weight-of-the-evidence issues are, in the absence of plain error, barred on appeal. See R. 2:10-1; State v. Herrera, 385 N.J. Super. 486, 492 (App. Div. 2006). We discern no plain error here.
We also discern no error in the trial judge's ruling that a statement from Zamudio, which was offered as exculpating defendant from "knowledge of any crime," was inadmissible as hearsay, and did not qualify as an exception to the hearsay rule under N.J.R.E. 803 (c)(25). The notarized statement was:
I, Jesus Zamudio, on December 21, 1997, had Huntley Patrick Pearce and his girlfriend, Ms. Debbie Moore, give me a ride from Manhattan, N.Y. to Fort Lee, N.J. for the sole purpose of picking up a car that was to be sold. I hereby affirm that Ms. Debbie Moore and Huntley Partick Pearce had no knowledge of any crime. They were only arrested for giving me a ride.
The trial judge could find no aspect of this statement that satisfied the requirements of the hearsay exception that a statement be, in one way or another, against the declarant's interest.
The last point addressed to the convictions asserts error in the admission of testimony during direct examination from a police witness with expertise in narcotics and narcotic trafficking. The testimony related the significance of the entries in the address book found on defendant's person and how those entries might be used to facilitate drug transactions. That testimony was well within the scope of the witness's expertise, and no objection to it was lodged at the time. We discern no plain error in its admission.
Although we reject the arguments advanced by defendant in respect of the convictions, we discern several flaws in the sentences. Because some of the terms of imprisonment were greater than the former presumptive terms, the sentences must be reconsidered. See State v. Natale, 184 N.J. 458, 495-96 (2005). Also, there was no articulation of reasons for imposing consecutive sentences. See State v. Molina, 168 N.J. 436, 442 (2001). Finally, the record of the sentencing proceeding discloses that defendant was not afforded the opportunity to allocute before the sentence was imposed. See R. 3:21-4(b); State v. Cerce, 46 N.J. 387 (1966). This is a structural error, requiring resentencing. See State in the Interest of J.R., 244 N.J. Super. 630, 639 (App. Div. 1990).
The convictions are affirmed. The matter is remanded for resentencing.