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State v. Cherry

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


February 11, 2008

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
PHILIP CHERRY, DEFENDANT-APPELLANT.

On appeal from Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 04-10-1844.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted December 12, 2007

Before Judges Parker, R. B. Coleman and Lyons.

Tried to a jury, defendant Philip Cherry (Cherry) was convicted on two counts of knowingly or purposely dispensing or distributing cocaine, N.J.S.A. 2C:35-5(a)(1) and -5(b)(3); two counts of knowingly or purposely dispensing or distributing cocaine while within 1000 feet of school property used for school purposes, N.J.S.A. 2C:35-7; and two counts of knowingly or purposely dispensing or distributing cocaine while within 500 feet of the real property comprising a public housing facility, a public park, or a public building, N.J.S.A. 2C:35-7.1. At sentencing, the trial judge merged the two distributing and the two distributing-within-1000-feet-of-school-property convictions into the two distributing-within-500-feet-of-public-housing convictions. He then proceeded to sentence defendant to two concurrent nine-year terms with four-and-one-half years of parole ineligibility. After reviewing the record in light of the contentions advanced on appeal, we have concluded that the trial judge did not commit reversible error at trial or during sentencing and, therefore, we affirm.

The following factual and procedural history is relevant to our consideration of the issues advanced on appeal. On July 22, 2004, Jersey City Detective Christopher Robateau (Robateau) was assigned to investigate narcotics activity in the "west district of Jersey City." Robateau, as surveillance officer, was joined by several other officers who served as the perimeter units. These officers would remain in the general area of the investigation and would stop and apprehend those involved in drug transactions.

Robateau established surveillance at 5:00 p.m. at the A. Harry Moore housing complex. The detective was specifically observing the rear of 324 Duncan Avenue. Robateau was approximately two-hundred feet away from the area of observation, lighting was good, and he was aided by binoculars. There was "medium" foot traffic, but nothing to hinder Robateau's ability to view the area. Pictures of Robateau's view that day were admitted into evidence.

At approximately 5:15 p.m., the detective observed defendant have a brief exchange of words with another man. Then, defendant reached into his right-hand pants pocket and handed the man something in exchange for paper currency. The man then left the area and was not apprehended.

Approximately five minutes later, the detective observed Claudia Caminneci*fn1 (Caminneci) drive up in a silver Dodge Neon, alight from the vehicle, approach defendant, and engage in a conversation. Defendant again reached into his pocket, retrieved an object, and exchanged it with Caminneci for paper currency. Caminneci then reentered her vehicle and drove away.

Robateau radioed the perimeter units who apprehended Caminneci. Two envelopes of heroin and two "jugs" of cocaine were recovered from her purse where she indicated that they would be.

At approximately 6:30 p.m., Alex Maurice Braxton (Braxton) approached defendant and engaged in a conversation. Defendant, once again, reached into his right-hand pants pocket, retrieved an object, and exchanged it for paper currency, this time with Braxton. Braxton then followed defendant into the building, where the detective lost sight of him. Approximately ten to fifteen minutes later, defendant reemerged into view, driving a Ford van. Robateau radioed the description of the van to the backup units. The police were unable to find defendant for about a half-hour, until he returned to the area in the van and was apprehended.

Officer Burgess stopped defendant's van, arrested him, and searched him. No drugs were found, but the officer recovered $183 in suspected drug proceeds.

Subsequent to defendant's arrest, Braxton was located and arrested. During the arrest, he was searched and one "jug" containing a rock-like substance, later identified as cocaine, was recovered from Braxton's right front pocket.

On October 14, 2004, defendant was indicted on nine counts: knowingly or purposely dispensing or distributing cocaine, in a quantity of less than one-half ounce, to Braxton, in violation of N.J.S.A. 2C:35-5(a)(1) and -5(b)(3) (count one); knowingly or purposely dispensing or distributing cocaine, to Braxton, in violation of N.J.S.A. 2C:35-5(a)(1), while within 1000 feet of school property used for school purposes, in violation of N.J.S.A. 2C:35-7 (count two); knowingly or purposely dispensing or distributing cocaine, to Braxton, in violation of N.J.S.A. 2C:35-5(a)(1), while within 500 feet of the real property comprising a public housing facility, a public park or a public building, in violation of N.J.S.A. 2C:35-7.1 (count three); knowingly or purposely dispensing or distributing cocaine, in a quantity of less than one-half ounce, to Caminneci, in violation of N.J.S.A. 2C:35-5(a)(1) and -5(b)(3) (count four); knowingly or purposely dispensing or distributing cocaine, to Caminneci, in violation of N.J.S.A. 2C:35-5(a)(1), while within 1000 feet of school property used for school purposes, in violation of N.J.S.A. 2C:35-7 (count five); knowingly or purposely dispensing or distributing cocaine, to Caminneci, in violation of N.J.S.A. 2C:35-5(a)(1), while within 500 feet of the real property comprising a public housing facility, a public park or a public building, in violation of N.J.S.A. 2C:35-7.1 (count six); knowingly or purposely dispensing or distributing heroin, in a quantity of less than one-half ounce, to Caminneci, in violation of N.J.S.A. 2C:35-5(a)(1) and -5(b)(3) (count seven); knowingly or purposely dispensing or distributing heroin, to Caminneci, in violation of N.J.S.A. 2C:35-5(a)(1), while within 1000 feet of school property used for school purposes, in violation of N.J.S.A. 2C:35-7 (count eight); and knowingly or purposely dispensing or distributing heroin, to Caminneci, in violation of N.J.S.A. 2C:35-5(a)(1), while within 500 feet of the real property comprising a public housing facility, a public park or a public building, in violation of N.J.S.A. 2C:35-7.1 (count nine). Counts ten, eleven, and twelve charged Braxton with possession of cocaine and Caminneci with possession of cocaine and heroin respectively. Braxton and Caminneci entered separate plea agreements prior to trial.

Before the trial, Judge Peter Vazquez held an in camera hearing in response to defendant's request that the State reveal the surveillance location. For reasons placed on the record under seal, the trial judge granted the motion to protect the surveillance location. However, he allowed defendant to question the surveillance officer about lighting conditions, his use of vision enhancing devices, the distance between where he was and the place under observation, the general direction and elevation of the position, and any obstructions.

On September 30, 2004, after the voir dire of the jury, after both defendant and the State had exhausted all of their peremptory challenges, after counsel agreed that the jury was satisfactory, and immediately before the jury was to be sworn, the trial judge asked the jury seated in the box, "is there anybody who forgot to tell me something or thought of something else that they need to tell me before I swear you in?" Three jurors responded. The judge excused one juror whose service on the jury would be a financial hardship. The judge also dismissed another juror for reasons not picked up by the microphone. Two new jurors were then chosen, one being an evening law student. The judge posed the same voir dire questions to the two new jurors as those asked of the others. Neither counsel requested any additional peremptory challenges or that any additional questions be asked. Both defense and the State indicated to the court that the jury was satisfactory and it was sworn.

After an intervening weekend, on October 4, 2005, prior to opening statements, defendant, joined by the State, objected to the jury selection process that had concluded the previous week. Defense counsel objected that he and the prosecutor both had exhausted their peremptory challenges as the jury was about to be sworn and that the judge excused two jurors and replaced them from the jury pool without providing defendant or the State with any additional peremptory challenges. The judge reviewed the case that counsel relied upon, State v. Tinnes, 379 N.J. Super. 179 (App. Div. 2005), distinguished it, and then denied the motion.

During the trial, defendant objected to the introduction of the drug evidence on the grounds that the State had failed to prove a satisfactory chain of custody as to that evidence. Judge Vazquez rejected defendant's motion, finding "sufficient testimony for the jury to infer the chain of custody from the police department to the lab."

Upon the conclusion of the State's case, defendant made a motion for a judgment of acquittal based on insufficient evidence to establish a prima facie case. The judge found that "[c]learly there's sufficient evidence that the jury could come to a determination that all the charges in the indictments have been proven" and, therefore, denied the motion.

Caminneci testified for the defense that she pled guilty to the charges against her. Caminneci further indicated that she pulled into the parking lot of Duncan Street projects to buy drugs. She then testified that her car was swarmed by kids to sell her drugs. Next, Caminneci stated that she bought drugs from two different people, but not from defendant. On cross- examination by the prosecutor, she acknowledged that she was a drug addict and did, in fact, see defendant there on the day of her arrest.

On October 6, 2005, defendant was convicted by the jury of the cocaine distribution counts of the indictment, but was acquitted on the counts relating to distribution of heroin.

Defendant was sentenced on December 15, 2005. Defendant received nine years with a four-and-one-half-year parole ineligibility for count three, which was knowingly or purposely dispensing or distributing cocaine while within 500 feet of the real property comprising a public housing facility, a public park, or a public building, N.J.S.A. 2C:35-7.1. Defendant received the same sentence for count six, the other public-housing-distribution charge, to run concurrent with count three and any violation of parole charges. In addition, defendant was assessed applicable fees ($100 VCCB, $4000 Drug Enforcement and Demand Reduction, $50 lab fee, $150 Safe Neighborhood Services Fund, $30 Law Enforcement Officers Training and Equipment Fund) and his license was suspended for two years.

On July 26, 2006, defendant filed a notice of appeal. Defendant raises the following issues on appeal:

POINT I

THE TRIAL COURT REVERSIBLY ERRED IN REJECTING CHERRY'S AND THE PROSECUTOR'S OBJECTION TO THE FLAWED JURY SELECTION PROCESS IN WHICH AFTER THEIR PEREMPTORY CHALLENGES WERE EXHAUSTED AND THEY INDICATED THAT THE JURY AS THEN CONSTITUTED WAS SATISFACTOR[Y] THE COURT AFTER INITIALLY INSTRUCTING THE JURORS THAT THEY HAD TO SPEAK UP ABOUT PROBLEMS WITH SERVING AT THE APPROPRIATE TIME WHEN THEY WERE CALLED BELATEDLY AND ERRONEOUSLY INVITED FURTHER REQUESTS TO BE EXCUSED FROM THE JURY, EXCUSED ONE OF THE SITTING JURORS ON A HARDSHIP CLAIM AND ANOTHER BECAUSE SHE BELATEDLY STATED THAT SHE COULD NOT BE IMPARTIAL AND REPLACED THOSE TWO SITTING JURORS ON A UNILATERAL BASIS.

POINT II

THE TRIAL COURT REVERSIBLY ERRED IN REJECTING CHERRY'S MOTION TO HAVE THE SURVEILLANCE LOCATION DISCLOSED IN ORDER TO EXERCISE HIS FEDERAL AND STATE CONSTITUTIONAL RIGHTS TO CROSS-EXAMINE HIS ACCUSER AND TO A FAIR TRIAL.

POINT III

THE TRIAL COURT SHOULD HAVE EXCLUDED THE DRUG EVIDENCE FROM THE RECORD BECAUSE THE STATE FAILED TO PROVE THE CHAIN OF CUSTODY AS TO THE DRUGS ALLEGEDLY SEIZED AT THE INCIDENT.

POINT IV

THE TRIAL COURT REVERSIBLY ERRED IN PERMITTING THE PROSECUTOR TO ELICIT ON CROSS-EXAMINATION FROM CLAUDIA CAMINNECI PRIOR CRIMES AND BAD ACTS IN VIOLATION OF N.J.R.E. 608.

POINT V

CHERRY'S INCONSISTENT GUILTY VERDICT ON COUNTS 4, 5, AND 6 WAS UNSUPPORTED BY SUFFICIENT EVIDENCE IN THE RECORD AND SHOULD BE REVERSED.

POINT VI

THE TRIAL COURT SUA SPONTE PURSUANT TO N.J.R.E. 404(b) AND N.J.R.E. 403 SHOULD HAVE EXCLUDED THE EXTREMELY PREJUDICIAL TESTIMONY OF OFFICER ROBATEAU IN WHICH HE INFORMED THE JURY OF CHERRY'S ALLEGEDLY OTHER BAD ACTS AND CRIMES.

POINT VII

CHERRY'S TWO CONCURRENT NINE-YEAR PRISON TERMS WITH FOUR AND A HALF YEARS OF PAROLE INELIGIBILITY SHOULD BE REVERSED AS ILLEGAL AND MANIFESTLY EXCESSIVE.

Defendant's arguments are discussed seriatim. First, defendant argues that the judge's actions in the jury selection process constituted reversible error. Specifically, the judge dismissed two potential jurors, after both defense counsel and the prosecutor used all of their peremptory challenges, and replaced them with jurors from the jury pool. Defendant claims that he was prejudiced because one of the eventual jurors, F.M.C., indicated that her mother and sister were victims of crimes, and defendant did not have a peremptory challenge left. Defendant further claims that the second replacement juror, M.M., as a law student, had the potential to be a "'one man jury' because the others assume that the law student has special knowledge," and that defendant should also have been able to challenge M.M.

Because Cherry, unlike the defendant in Tinnes, supra, 379 N.J. Super. 179, did not object at the time of the jury selection, nor did defendant request additional peremptory challenges, we examine this question under the plain error standard. R. 2:10-2; State v. Bunch, 180 N.J. 534, 541 (2004).

Recently, we reiterated "the need for trial judges to . . . firmly remind jurors of their obligation to immediately report to the judge any misstatement or omission the juror may have made during the selection process." State v. Bianco, 391 N.J. Super. 509, 523 (App. Div. 2007). In Bianco, we found:

The purpose of jury selection is to obtain a jury that can decide the case without bias against any of the involved parties, that will evaluate the evidence with an open mind, and that will apply the law as instructed by the judge. Voir dire practices must be geared to eliciting meaningful information from prospective jurors so those with a real potential for bias can be excused. [Id. at 517 (quoting Standards for Jury Selection (promulgated by Directive # 21-06 on December 11, 2006) at page 1)).]

Even though he did not have the benefit of this case at the time of trial, Judge Vazquez's final question to the prospective jury was appropriate as he was verifying that there was no additional information or issues which may have exposed potential juror bias or inability to serve.

Most importantly, defendant fails to allege any prejudice to defendant as a result of the replacement of the two jurors. The record is devoid of any evidence of bias, partiality, or juror misconduct with respect to the two replacement jurors. Therefore, we find that defendant's substantial rights were not prejudicially affected, nor was the integrity of the jury selection process compromised. We also find no error which "possessed a clear capacity to bring about an unjust result." See State v. Hock, 54 N.J. 526, 538 (1969), cert. denied, 399 U.S. 930, 90 S.Ct. 2254, 26 L.Ed. 2d 797 (1970); Tinnes, supra, 379 N.J. Super. 204-05.

Second, defendant argues that the court reversibly erred in rejecting his motion to disclose the surveillance location. He argues that this was a violation of his federal and state constitutional rights to cross-examine his accuser. Our Supreme Court recognizes "a 'surveillance location privilege' that permits the State, in appropriate circumstances, to conceal information about the location from which law-enforcement personnel have observed alleged criminal activities." State v. Zenquis, 131 N.J. 84, 86 (1993); State v. Garcia, 131 N.J. 67, 70 (1993). "[T]he State must first convince a court that disclosure would compromise an important public interest." Garcia, supra, 131 N.J. at 77. The rules of evidence recognize an "informer's privilege" unless the defendant makes a "substantial showing of need." Id. at 78. The information is only protected if disclosing it would be "harmful to the interests of the public." Accordingly, "the State must demonstrate a realistic possibility that revealing the location would compromise present or future prosecutions or would possibly endanger lives or property." Ibid. The court should hold an in camera hearing, without defense counsel, in order to justify the exercise of the privilege and to sufficiently detail the sealed record for appellate review. Ibid.

Judge Vazquez held such an in camera review regarding the surveillance location of Robateau. The judge ruled that the location was protected because disclosure would not only endanger officers' safety, but would also compromise future investigations. The record was then placed under seal as required by Garcia and Zenquis.

As the State correctly argues, defendant was still able to "effective[ly] cross-examine . . . the officers and the jury's ability to critically examine the testimony was not impaired." The State further states that the exact surveillance location is not required to protect defendant's constitutional rights and the "jury's ability to critically examine the testimony." Judge Vazquez stated:

[E]arlier this morning we had an in camera hearing with regard to the defense motion to not have the officer have to reveal the surveillance location and for reasons placed on the record under seal I granted that motion. You can question him about the lighting conditions, his use of vision enhancing devices, the distance between where he was and . . . the place he surveilled, . . . the general direction, his position whether elevated or otherwise and any obstructions to view.

The Garcia Court identified similar areas of which a defendant may examine a witness: "the distance from which the observation was made," "if the witness used some vision-enhancing article," "whether the officer observed the alleged crime from an elevated position," and "officer's angle of sight." Garcia, supra, 131 N.J. at 81-82. Robateau did, in fact, testify to this information and was cross-examined by defendant.

On appeal, the trial judge's decision should not be disturbed "unless after weighing the competing factors, this court determines that the trial court abused its discretion. State v. Ribalta, 277 N.J. Super. 277, 288 (App. Div. 1994) (citing Garcia, supra, at 81; Zenquis, supra, 131 N.J. at 88). We have reviewed the transcript of Judge Vazquez's in camera hearing and find that the judge did not abuse his discretion in rejecting the motion to disclose the surveillance location for reasons that he placed on the record.

Third, defendant argues that the trial judge should have excluded drug evidence from the record because the State failed to prove the chain of custody. A court is not required to exclude evidence solely because a chain of custody was not proven. Our Supreme Court has observed that "a defect in the chain of custody goes to the weight, not the admissibility, of the evidence introduced." State v. Morton, 155 N.J. 383, 446-47 (1998) (quoting United States v. Matta-Ballesteros, 71 F.3d 754, 769 (9th Cir. 1995), cert. denied, 519 U.S. 1118, 117 S.Ct. 965, 136 L.Ed. 2d 850 (1997), cert. denied, 532 U.S. 931, 121 S.Ct. 1380, 149 L.Ed. 2d 306 (2001)). The Morton Court relied upon the Matta-Ballesteros standard, which required that the rules of evidence require "sufficient proof" for a juror to conclude that chain-of-custody evidence is "in substantially the same condition as when . . . seized," and is admissible "if there is a reasonable probability the [evidence has] not been changed in important respects." Matta-Ballesteros, supra, 71 F.3d at 769.

The trial judge ruled that "[t]here's sufficient testimony for the jury to infer the chain of custody from the police department to the lab so the objection is overruled with regard to" the drug evidence. Defendant argues that since the drug evidence was not placed into envelopes at the scene, there was no "evidence from which the jury could have reasonably inferred that the same drugs from the incident were the ones taken to the Hudson County laboratory for testing."

"Whether the requisite chain of possession has been sufficiently established to justify admission of the exhibit is a matter committed to the discretion of the trial judge, and his determination will not be overturned in the absence of a clearly mistaken exercise thereof." State v. Brown, 99 N.J. Super. 22, 27 (App. Div.), certif. denied, 51 N.J. 468 (1968). At trial, the arresting officers testified that the drugs were recovered from Caminneci and Braxton. Officer Lugo testified that he stopped Caminneci and recovered from her two bags of suspected heroin and two "jugs" of suspected cocaine. Officer Lugo further testified that he placed the suspected drugs into bags and marked the bags S-1A and S-1B for identification. Officer Traynor testified that he recovered one "jug" of a "rock like substance" from Braxton, he placed it into a bag, and marked the bag S-2A for identification.

Linda Hogger (Hogger), a senior forensic chemist from the Hudson County Prosecutor's Officer Forensic Laboratory, testified that she received three items, marked S-1A, S-1B, and S-2A, and detailed the process by which the laboratory tracks and analyzes evidence. Hogger testified that the evidence at trial was in substantially the same condition as when she last saw it. Lugo and Traynor also testified that the lab markings were the only difference between the day the evidence was recovered and at trial. The chain of custody illustrated by the officers' and the technician's testimony satisfies the "substantially same" standard adopted by Morton, supra, 155 N.J. at 446-47. As the testimony of the officers established an unbroken chain of custody, we find that there was no mistaken exercise of discretion. Id. at 446.

Fourth, defendant argues that the trial judge erred in permitting the State to cross-examine Caminneci over defendant's objection on "prior crimes and bad acts in violation of N.J.R.E. 608."*fn2 On direct examination, Caminneci testified that she pled guilty to possession of CDS, that she went to the housing complex to purchase drugs and did, in fact, purchase drugs there that day. She then testified, though, that she did not buy any drugs from defendant that day. On cross-examination, the State questioned Caminneci on her prior drug purchases at the Duncan housing complex, her addiction to drugs, and the details of the drug purchase on that day.

As a general rule, "all relevant evidence is admissible." N.J.S.A. 402. Relevant evidence may be excluded, however, if "its probative value is substantially outweighed by the risk of (a) undue prejudice, confusion of issues, or misleading the jury . . . ." N.J.R.E. 403. Testimony that Camenneci had previously purchased drugs at the housing complex and that she was addicted to drugs was relevant as to her truthfulness because she may have wanted to protect her source of drugs. Because defendant initiated the questioning concerning Caminneci's use of drugs, he would be unable to show how the further questioning on the subject prejudiced him; he already placed Caminneci's drug use and credibility in question.

We find that the questioning was permissible as defense counsel had opened the door. On direct, defendant elicited testimony from Caminneci that she went to the housing complex to buy drugs. The prosecutor then cross-examined Caminneci on her use of drugs and her addiction. N.J.R.E. 611(b) states that "[c]ross-examination should be limited to the subject matter of the direct examination and matters affecting the credibility of the witness." See also State v. Farthing, 331 N.J. Super. 58, 79 (App. Div.), certif. denied, 165 N.J. 530 (2000). However, "[a] witness can unwittingly open [her]self up to cross-examination into otherwise prohibited areas by testifying on those subjects during [her] direct examination." Biunno, Current N.J. Rules of Evidence, comment 2 on N.J.R.E. 611 (2007) (citing State v. Farr, 183 N.J. Super. 463, 468-69 (App. Div. 1982)).

For example, in Farr, the prosecutor was allowed to explore areas on cross-examination that would normally be off-limits, such as employment status and financial obligations, because the witness had himself opened the door by claiming that he had money in his pocket and, thus, no motive to rob the store.

Farr, supra, 183 N.J. Super. at 468-69. Similarly, Caminneci opened the door to her drug activities by testifying that she was purchasing drugs. As we give "substantial deference to the evidentiary rulings of a trial judge," we find that Judge Vazquez did not abuse his discretion. DeVito v. Sheeran, 165 N.J. 167, 198 (2000) (citing State v. Morton, 155 N.J. 383, 453 (1998)).

Fifth, defendant argues that the jury verdict was inconsistent and against the weight of the evidence. He argues that the jury found him guilty of counts four through six (sale of cocaine to Caminneci), but acquitted him of counts seven through nine (sale of heroin to Caminneci).

We have held that "it is firmly settled that consistency in verdicts is not required under our law. Any inquiry in this regard is limited to whether the counts of which defendant was convicted were supported by sufficient evidence to permit a rational factfinder to find guilt beyond a reasonable doubt." State v. Ortiz, 253 N.J. Super. 239, 244 (App. Div.) (internal citations omitted), certif. denied, 130 N.J. 6 (1992). We are required to review the verdict only "'where an acquittal on one count precludes the finding of one or more elements of an offense charged in a second count as a matter of law.'" Ibid. (quoting State v. Peterson, 181 N.J. Super. 261, 266 (App. Div. 1981)), certif. denied, 89 N.J. 413 (1982)).

The heroin charges and cocaine charges were mutually exclusive of one another. That is to say, acquitting defendant of selling heroin in no way precluded finding the elements of distribution of cocaine. For example, both Caminneci and Braxton had cocaine when they were arrested, but only Caminneci had heroin. Viewing the testimony at trial in conjunction with the other evidence, the State apparently presented a stronger case on the cocaine charges than the heroin charges. Therefore, we need only to determine whether a rational jury could find guilt beyond a reasonable doubt of the cocaine charges based on the proofs presented by the State.

As detailed in the facts above, the State presented evidence that, viewed in the light most favorable to the State, satisfied every element of each crime relating to the distribution of cocaine. See State v. Spivey, 179 N.J. 229, 236 (2004). The proofs were a combination of direct and circumstantial evidence primarily gathered during the police surveillance operation and subsequent arrests. State v. Perez, 177 N.J. 540, 549 (2003) (both direct or circumstantial evidence is viewed in the light most favorable to the State).

Sixth, defendant argues that the trial judge, sua sponte, should have excluded "extremely prejudicial" testimony of Robateau in which he testified to "Cherry's allegedly other bad acts and crimes." Specifically, Robateau testified that he saw another man approach defendant early in the surveillance and exchange paper currency for a small object. That man was never found. Defendant argues that that testimony was highly prejudicial because "it implied to the jury that Cherry had a criminal disposition toward drug dealing and had acted upon that predisposition in this case." Quoting State v. James Cherry, 289 N.J. Super. 503, 522 (App. Div. 1995), the State argues that this testimony "does not apply when the 'other crimes' evidence is part of the total criminal conduct that occurred during the incident in question and may be considered within the res gestae of the crime charged."

The evidence presented was to describe the "context of the criminal event." Ibid. "A jury 'cannot be expected to make its decision in a void -- without knowledge of the time, place and circumstances of the acts which form the basis of the charge.'" Ibid. (quoting United States v. Masters, 622 F.2d 83, 86 (4th Cir. 1980)). As the testimony of Robateau was not other bad acts and crimes evidence -- it merely painted a picture of the circumstances for the jury -- N.J.R.E. 404(b) is not applicable. Therefore, the four-prong test set forth in State v. Cofield, 127 N.J. 328, 334 (1992), also does not apply. Cherry, supra, 289 N.J. Super. at 522. Accordingly, Judge Vazquez did not err in failing to exclude the testimony sua sponte. Ibid.

Seventh, defendant argues that his concurrent nine-year prison terms with four-and-one-half years of parole ineligibility sentence should be reversed as illegal and manifestly excessive. Our Supreme Court has outlined the respective roles of the trial court and the appellate division with regard to criminal sentences. According to the Court, "a trial court should identify the relevant aggravating and mitigating factors, determine which factors are supported by a preponderance of the evidence, balance the relevant factors and explain how it arrives at the appropriate sentence." State v. O'Donnell, 117 N.J. 210, 215 (1989); see also State v. Kruse, 105 N.J. 354, 359-60 (1987); State v. Roth, 95 N.J. 334, 359-60 (1984). In contrast, an appellate court, does not sit to substitute its judgment for that of the trial court. An appellate court is bound to affirm a sentence, even if it would have arrived at a different result, as long as the trial court properly identifies and balances aggravating and mitigating factors that are supported by competent credible evidence in the record. [O'Donnell, supra, 117 N.J. at 215.]

"Assuming the trial court follows the sentencing guidelines, the one exception to that obligation occurs when a sentence shocks the judicial conscience." Id. at 215-16. Given a careful balancing of mitigating and aggravating factors by the trial judge, we should not substitute our judgment for that of the trial judge. Id. at 220.

Applying these standards to the instant matter, it follows that the trial judge did not impose an excessive sentence upon Cherry. The judge cited defendant's five prior indictable convictions, with two previous school-zone offenses. Accordingly, he found aggravating factors (3), (6), and (9) and no mitigating factors. N.J.S.A. 2C:44-1. Moreover, the judge declined to grant the State's motion for an extended term. In light of the pre-sentence report and defendant's prior criminal record, the sentence of nine years does not shock the judicial conscience. O'Donnell, supra, 117 N.J. at 215.

Affirmed.


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